• Maurice Cashmere
Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT, volume 12)


In the development of anti-avoidance jurisprudence, Australia has looked to the UK in fashioning its own rules. This has included grappling with the role of the “purposive” approach to statutory interpretation in which a court determines whether a particular business arrangement constructed by a taxpayer is the kind intended to be accorded tax benefits. With the 1981 amendment of Australia’s pre-existing GAAR, the parameters for determining whether a transaction achieves a tax-minimizing result have become somewhat more precise. The GAAR is of general application, not limited to specific transactions, but it may not be utilized by the courts unless invoked by the Federal Tax Commissioner. It becomes operative if three elements are present: a scheme, a tax benefit, and a dominant purpose to obtain an identified tax benefit. While the concepts of a scheme and a tax benefit are indefinite, the GAAR specifies an eight-factor test in determining the taxpayer’s dominant purpose in entering into a scheme. Although the present version of the GAAR has been in force for 30 years, there is no definitive jurisprudence regarding its application. The lack of clarity derives from differing views on the weight to be given business reasons for entering an arrangement in which circuitous steps are taken to garner the benefits of a tax statute.


Transfer Price Criminal Code Taxation Offence Statutory Interpretation Australian Taxation 
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Copyright information

© Springer Science+Business Media B.V. 2012

Authors and Affiliations

  1. 1.Australia School of Business and Taxation, University of New South WalesSydneyAustralia

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