Some methodological dilemmas in comparative tax law

Abstract

Since for much of the 20th century the comparative law was developing as the comparative private law, with subsequent inclusion of constitutional, administrative and criminal law, comparisons of national tax systems were until recently marginal. The examination of the methods appropriate for the comparative tax law was especially neglected. Assuming that method in comparative law can be identified by techniques of comparisons, the authors considered dilemma whether the starting point for comparisons is praesumptio similitudinis or presumption of difference. Stemming from diversities of these assumptions, two methodological approaches in the comparative (tax) law have developed - functionalism (based on presumption of similarities) and cultural differences approach, from which critical approach subsequently emerged. Having analysed advantages and disadvantages of both approaches, the authors elaborated the basics of "cultural functionalism", based on the inclusion of cultural context into the research of the ways how tax laws subject to comparison solve the given problems.

Keywords

• comparative tax law
• functionalism
• cultural differences approach
• methodology of comparative tax law
• legal transplants in taxation