GAAR Revisited: From Instinctive Reaction to Intellectual Rigour

Pooja Samtani () and Justin Kutyan ()
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Pooja Samtani: Osler Hoskin & Harcourt LLP, Toronto
Justin Kutyan: KPMG Law LLP, Toronto

Canadian Tax Journal, 2014, vol. 62, issue 2, 401-428

Abstract: In the 25 years since the general anti-avoidance rule (GAAR) came into effect, the possibilities and perils of tax avoidance have given rise to much debate. Less openly discussed are the subjective considerations that affect the resolution of GAAR cases and the uncertainty that such influences create. This article reviews the more significant, but less tangible, aspects of the GAAR analysis. It seeks to determine whether the cases decided to date can be rationalized so as to reveal certain recurring legal themes, even though the decisions were made in varying factual circumstances. The authors examine the scope of GAAR with reference to the driving factors, objective and otherwise, that have informed its application. In particular, they explore an interpretive approach to GAAR that remains grounded in intellectual rigour, even when influenced by instinctive reaction.

Keywords: GAAR; tax avoidance; anti-avoidance; statutory interpretation; tax planning; tax litigation (search for similar items in EconPapers)
Date: 2014
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