Published on 01 Aug 11
by "THE TAX SPECIALIST" JOURNAL ARTICLE
Each state and territory of Australia has now adopted either a general anti-avoidance provision (GAP) applicable to all taxes and duties, or a more specific GAP applicable to duty or other taxes. Unfortunately, no two jurisdictions have identical duty GAPs, though there are similarities. This makes the consideration of GAPs more complex, given that transactions commonly involve assets in several jurisdictions, therefore requiring consideration of the legislation in several jurisdictions. This, the authors argue, is inefficient, serves no purpose, and gives no benefit.
This article provides an overview of the duty GAP in each jurisdiction, identifying the similarities and (more importantly) the differences between the models adopted by each jurisdiction. The discussion draws on recent income tax and GST GAP cases to assist in understanding the operation of the state and territory GAPs, and considers the special challenges that are represented when trying to apply GAPs in a duty context.
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