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White roses red: The false dichotomy of GAAR determinations

Published on 01 Oct 18 by "THE TAX SPECIALIST" JOURNAL ARTICLE

In the murky and confused interpretations of tax minimisation, tax avoidance and tax evasion, there abounds numerous opportunities to “paint white roses as red” — a well-known metaphor not only for spin doctors and politicians who seek to put a positive interpretation on a negative outcome, but also an alliteration for concealing the true nature of something from inquiry or investigation. In terms of the operation of the Australian general anti-avoidance rules (GAARs) as well as the ancillary legislative and administrative provisions designed to protect the revenue, a degree of uncertainty and discretionary power in the Commissioner’s ability to deal with such attempts has been deemed to be inherently necessary. The purpose of this article is to demonstrate the fundamentally flawed “false dichotomy” that the Commissioner holds discretion under the GAAR in the Income Tax Assessment Act 1936 (Cth) when dealing with the myriad of schemes, promotions and mechanisms by which tax avoidance or evasion are promulgated.

Author profile

Brendan Walker-Munro
Brendan is a Investigations Manager, Tax Practitioners Board.
Current at 1 October 2018

 

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