This thesis examines whether the UK's General Anti-Abuse Rule (GAAR) unjustifiably permits the judiciary to take account of the taxpayer's motives, intentions and purposes for the purpose of determining tax liability. It will be argued that the UK GAAR does permit consideration of these factors, which, it will be argued, is undesirable because of the subjective nature of these terms and the possibility of judges ascribing a motive, intention or purpose on the taxpayer which may not be factual in reality. Although the GAAR has attracted much commentary, there has been little to explain how the GAAR allows the taxpayer's motives, intentions and purposes for embarking on an arrangement to be scrutinised by HMRC and the courts. This discussion hopes to fill this gap, especially in respect of whether and how the provisions of the GAAR can allow for a "motive test", how such a test may be applied in practice, and whether the GAAR can still be considered to have a targeted scope in light of factors that are arguably subjective. An allied issue that is examined is whether the implementation of the UK GAAR was needed given that the courts can apply the principle established in WT Ramsay Ltd v IRC1 to cases on tax avoidance. In developing the arguments presented in this thesis, the approaches of a number of Western jurisdictions will be examined. The selected jurisdictions chosen include; the United States of America, Australia, New Zealand, South Africa and Canada. These countries, with the exception of the United States of America, have a general anti-avoidance legislation in place and the majority of them include an anti-abuse provision in their general anti-avoidance rules. The thesis concludes that the UK GAAR is unique in taking into account the taxpayer's intentions. The UK GAAR also makes reference to the purpose of the taxpayer's arrangement. These factors, taken together, can result in scrutinisation of the taxpayer's own motive, intention or purpose. It will be suggested that the scope of the UK GAAR is much wider than it was ostensibly designed to be and that it is likely to rely heavily on the discretion of judges. Therefore, suggestions as to the ways in which the GAAR could move towards a more objective approach are given.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:764890 |
| Date | January 2017 |
| Creators | Keesoony, Selina |
| Contributors | Olowofoyeku, A. ; Korotana, M. |
| Publisher | Brunel University |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://bura.brunel.ac.uk/handle/2438/16059 |
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