A case for a uniform statutory general anti-avoidance rule in Australian taxation legislation [thesis]

Rachel Anne Tooma
2007
Taxpayer certainty is the most frequently cited argument against statutory General Anti-Avoidance Rules (GAARs). However the vast literature criticising statutory GAARs fails to consider the extent of taxpayer uncertainty, and the potential for taxpayer uncertainty, in jurisdictions without a statutory GAAR. This thesis examines that gap in the literature. The thesis uses inductive reasoning to suggest that there is greater taxpayer certainty where a statutory GAAR exists and is appropriately
more » ... ministered. Specifically, it uses a case study to demonstrate that there is greater uncertainty for taxpayers where the administration, the judiciary and the legislature may use their vast powers to address perceived avoidance. The thesis then considers the form of a statutory GAAR that may best be expected to promote taxpayer certainty. Such analysis involves a comparison of Australia's oldest statutory GAAR, Part IVA of the Income Tax Assessment Act 1936 (Cth) (and its predecessor section 260), with the more recent GAARs in Australia's indirect tax legislation (GST and state stamp duty), and the GAARs of other jurisdictions, including New Zealand, Canada and South Africa. In order to promote taxpayer certainty, a uniform statutory GAAR is ultimately proposed for all Australian taxation legislation, with safeguards to ensure the appropriate administration of the uniform GAAR.
doi:10.26190/unsworks/17426 fatcat:rnjj2pxtkvervcncam3whs7edi