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Anti-avoidance measures of general nature and scope - GAAR and other rules

Subject 1 of the IFA 2018 Cahier covers General Anti-Avoidance Rules (GAARs) and other anti-avoidance measures, of general scope, implemented by jurisdictions across the globe. In the 2002 Oslo IFA Congress, one of the conclusions of the report on the subject ‘Form and substance in tax law’ was that countries would challenge tax avoidance schemes with or without a GAAR; in its absence, judge-made doctrines or civil law concepts (sham, abuse of law and fraud of law) are nowadays commonly applied as anti-avoidance measures of general nature.

Branch Reporters have described in detail their domestic GAARs or general anti-avoidance judicial doctrines, in respect to their statutory design features and according to the questions provided to them. In the second part of the report, case law on the operation of the GAARs or other similar rules or doctrines is depicted by the reporters. And in the third part, the Branch Reporters portrayed any existing safeguard to the taxpayers in the operation of the GAAR or other similar rules or doctrines. 

Given the fact that anti-avoidance measures of general nature are applied in most jurisdictions, one country can learn from the other on how to draft GAARs, identify comparable features, solve similar issues and analyse significant judicial outcomes. GAARs are on the international agenda, particularly considering the OECD’s Base Erosion and Profits Shifting program – BEPS’ context.

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