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Comment by earnesti | Hacker News Reader

How can you say what is fictive and what not? Licensing fees and loans exist on market anyway.

The existence of valid licensing fees does not mean all licensing fees are valid. Surgeons are allowed to legally cut people, that doesn't mean we can't figure out when someone was illegally stabbed.

Let's not give up without even trying.

If a profitable company is making a loan it does not need to a subsidiary it controls, that's a fictive loan used to disguise a transfer.

When licensing costs are paid to a shell company with 3 employees in a country that is neither the place where the HQ are or where the company originates from, that's fictive.

Any time legislatures have a hard time defining the line between legal and illegal behavior, courts tend to take a “we’ll know it when we see it” approach. Justice might be served but rule of law is diminished.

a major difference between continental law and common law is the intent of the law though.

If the court can prove that they did not handle with the intent of the law, it can still be decided that this is fraud. In a common law system this is not possible.

Common law is based on precedent and common sense application of the law, so it is generally common law systems which are described as being open to interpretation.

Common sense has nothing to do with common law after a couple generations morph any type of sense a law could have made into something nigh unrecognizable. Go digging through case law in different jurisdictions and marvel at the contradictory interpretations that arise. This is why strategic changes in jurisdiction are a valuable part of litigative strategy.

Not really. “Fictive” just means “not real,” and courts have processes for judging whether things are real or not. The fact that courts still have to judge the actual facts of the matter doesn’t mean the legislature isn’t doing its job or that rule of law is diminished. It’s no different than courts judging the truth value of claims in a murder case or a fraud case.

You figure out what the intent is.

If the same owner is behind both, and there seems to be no other reason that avoiding taxes, guilty.

"oh no, our publicly very profitable company actually doesn't make any money because of all the.. license fees we pay, that we are clearly in a position to bargain for better, yet mysteriously do not! oh its such a coincidence that everyone in the C-Suite still makes money off the the shell company."

You can obfuscate fraud. But don't try that post-modern horseshit "what is being, man" on us.

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