The introduction of section 245, the General Anti-Avoidance Rule (GAAR), as part of the 1987 reforms to the Income Tax Act generated considerable controversy. After an initial flurry of commentary, the tax community patiently awaited both the application of the GAAR by the Canada Customs and Revenue Agency and its interpretation by the courts. Now that the first judicial stirrings have been felt, it is an appropriate time to reconsider the role of the GAAR in light of developments in Canada and abroad. This book brings together writers who represent a cross section of the tax bar — public and private practitioners, and academics — whose views reflect the spectrum of debate over section 245.
The book analyses the text of section 245 and the existing body of case law, and suggests a set of principles for its application. It examines the legislative history of the provision, the case law that led to its creation, the principles of interpretation of tax statutes and tax treaties, and the comparable provisions in other jurisdictions. The analysis is current to December 2001.
Table of Contents
Foreword - Justice Peter Cory
Preface - Peter W. Hogg, Dean of Osgoode Hall Law School
Introduction - Harry Erlichman, Justice Canada
Chapter 1: The Statutory Context of the GAAR - Harry Erlichman, Livia Singer, Marilyn Vardy, and David E. Spiro - Justice Canada
Chapter 2: The Relationship Between Statutory Interpretation and Tax Avoidance - Brian J. Arnold, Goodmans
Chapter 3: General Anti-Avoidance in the United Kingdom - Ian Roxan, The London School of Economics and Political Science
Chapter 4: Development of the GAAR in the Case Law - Susan L. Van Der Hout, Osler Hoskin Harcourt LLP
Chapter 5: The GAAR and Canada’s Tax Treaties - James R. Wilson, Wilson and Partners, and Jillian M. Welch, McCarthy Tetrault LLP
APPENDIX A: Specific Anti-Avoidance Rules: The Purpose Tests
APPENDIX B: Specific Anti-Avoidance Rules: The Reason Tests
APPENDIX C: The GAAR
Table of Cases
About the Authors