Tax Avoidance and the Law: Understanding the UK General Anti-Abuse Rule

Taxation

Tax Avoidance and the Law: Understanding the UK General Anti-Abuse Rule

By Selina Keesoony
Routledge May 2022

Specifications

ISBN-13
9780367472450
Publisher
Routledge
Publication
May 2022
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

Tax Avoidance and the Law is a helpful guide to undergraduate and postgraduate students who want a thorough understanding of this dynamic area of Law. The book is written in a way which is easy to follow and conveniently summarises complex case law on tax avoidance.

Tax Avoidance and the Law explores the evolution of the UK’s General Anti-Abuse Rule. It provides a useful comparison with other Western jurisdictions’ anti-avoidance legislation including, the United States of America, Australia, New Zealand, South Africa, Canada and the EU. The underlying theme of the book rests on the notion that the taxpayer’s subjective motives, intentions or purposes are irrelevant when assessing tax liability.

The book enables students to gain a good grasp of the fundamental issues in tax avoidance in a clear manner.

Table of Contents

Abstract i
Introduction 1
Chapter 1: Defining motive, purpose and intention
1.1: Criminal Law perspective
1.2: Psychological perspective
1.3: Philosophical perspective
1.4: Tax Law perspective
1.4 (a) Trading
1.4 (b) Expenditure
1.4 (c) Dividend stripping
1.4 (d) Targeted anti-avoidance rules
1.5: Conclusions
Chapter 2: A move towards motive, intention and purpose
2.1: Tackling tax avoidance
2.2: The divide between supporters of Ramsay and Westminster
2.2 (a) Supporters of Ramsay
2.2 (b) Supporters of Westminster
2.3: Motive, intention and purpose considered across other areas of Tax law
2.3 (a) Trades, professions & vocations
2.3 (b) Expenditure
2.3 (c) Accountancy standards
2.4: Why the "motive approach" is considered
2.5: How motive, intention and purpose are considered
2.5 (a) The "substance over form" doctrine
2.5 (b) Purpose
2.5 (c) Commercial or business purpose
2.5 (d) The step transaction doctrine
2.5 (e) Motive or intention
2.6: Suitability of the motive approach in Tax Law
2.6 (a) Is the motive approach necessary?
2.6 (b) Restructuring transactions
2.6 (c) Inconsistencies
2.6 (d) Constitutional legitimacy of the motive approach
2.7: Conclusion
Chapter 3: The GAAR provisions analysed
3.1: The GAAR: An overview
3.2: The GAAR provisions
3.2 (a) Tax advantage
3.2 (b) Tax arrangement
3.2 (c) The main purpose test
3.2 (d) The double reasonableness test
3.2 (d)(i) "Reasonableness" in Tort and Contract Law
3.2 (d)(ii) "Reasonableness" in Public Law
3.2 (d)(iii) Reasonable man
3.2 (e) Abuse according to the GAAR
3.3: Abuse according to the GAAR guidance
3.4: What is not abusive
3.5: The scope of the GAAR
3.6: The Aaronson Report
3.7: Penalties
3.8: An EU-wide GAAR
3.9: Conclusion
Chapter 4: General anti-avoidance legislation in other jurisdictions
4.1: The United States’ Economic Substance Doctrine ("ESD")
4.1 (a) Common Law background
4.1 (b) The ESD provisions
4.1 (c) Case Law post the American ESD
4.2: The Australian General Anti-Avoidance Rule
4.2 (a) Scheme
4.2 (b) Tax benefit
4.2 (c) Purpose
4.3: Australian Case Law post the Australian General Anti-Avoidance Rule
4.4: The New Zealand General Anti-Avoidance Rule
4.4 (a) Counteraction
4.4 (b) Case Law post the New Zealand General Anti-Avoidance Rule
4.5: The South African General Anti-Avoidance Rule
4.5 (a) Case Law post the South African General Anti-Avoidance Rule
4.6: The Canadian General Anti-Avoidance Rule
4.6 (a) Case Law Post the Canadian General Anti-Avoidance Rule
4.7: Conclusion
Chapter 5: Discretion
5.1: The ambiguous GAAR
5.2: HMRC’s role
5.3: Judicial discretion
5.3 (a) Judicial law-making
5.3 (b) Interpretation
5.4: Morality
5.5 Conclusion
Chapter 6: Criticisms of the GAAR
6.1: The main purpose test
6.2: The double reasonableness test
6.3: The scope of the GAAR
6.4: HMRC GAAR Guidance
6.5: The lack of a clearance system
6.6: The UK’s international competitiveness
6.7: Complexity
6.8: Uncertainty
6.9: Constitutional issues
6.10: Conclusion
Chapter 7: Was the GAAR needed?
7.1: Ramsay vs the GAAR
7.1 (a) The overall Ramsay approach
7.1 (b) The main features of the GAAR
7.1 (c) The Ramsay approach verses the GAAR
7.2: Contemporary tax avoidance before the GAAR
7.4: The GAAR as a deterrence
7.5: Conclusion
Chapter 8: Conclusion and recommendations for reform
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