| 释义 |
General Anti-Abuse Rule
(GAAR) In addition to anti-avoidance provisions to counter specific arrangements, the Finance Act 2013 s 209 enacts the General Anti-Abuse Rule (GAAR) by imposing or increasing a liability to tax by making an adjustment where tax arrangements are “abusive”. In contrast to the traditional approach in English revenue law, which focuses on actions, the key element in the GAAR is the purpose of the person subject to tax (or who would be subject to tax if it were not for the steps entered into). Thus, “tax arrangements” are those arrangements for which “it would be reasonable to conclude that the obtaining of a tax advantage was the main purpose, or one of the main purposes”. Similarly, “abusive” arrangements are those that “cannot reasonably be regarded as a reasonable course of action in relation to the relevant tax provisions”. This approach is comparable to that of the European Court of Justice in respect of abus de droit. According to the statute, indications that tax evasions are abusive include: (a) taxable income, profits, or gains being significantly less than “the amount for economic purposes”; (b) tax deductions or losses being “significantly greater than the amount for economic purposes”; and (c) “a claim for repayment or crediting of tax (including foreign tax) that has not been, and is unlikely to be, paid”. This list is declared not to be exhaustive. The GAAR has been criticized by many commentators on two grounds. First, it creates an additional level of uncertainty in an area of the law where it is reasonable to strive for certainty. Second, it gives quasi-judicial powers to HM Revenue and Customs: the Finance Act 2016 s 156 extends the Finance Act 2013 by enabling an HMRC officer to issue a “provisional counteraction notice” which has the effect that additional tax is payable before an appeal is heard. In this, the GAAR operates in a manner akin to the issue of a Follower Notice or action taken against a Promoter of Tax Avoidance Schemes. |