In October 2005, the Supreme Court of Canada released its much-anticipated decisions in The Queen v. Canada Trustco Mortgage Co. and Mathew v. The Queen—the first cases in which the Court has specifically addressed the General Anti-Avoidance Rule (GAAR) in section 245 of the Canadian Income Tax Act. Since then, the Tax Court of Canada has released several decisions in which the GAAR has been considered and applied.
The articles in this volume reflect on these decisions and the role of a general anti-avoidance rule more generally by reviewing the decisions themselves, considering other tax avoidance cases in Canada and other countries, and considering the structure and amendment of a GAAR as a matter of legislative policy. By addressing various aspects of tax avoidance jurisprudence as well as the design and amendment of the GAAR, the book makes a positive contribution toward the interpretation and application of this provision.
Tax Avoidance in Canada after Canada Trustco and Mathew will appeal to legal theorists, economists, tax advisors, tax litigators, and judges.
Foreword – Chief Justice Donald Bowman
CHAPTER 1: The Supreme Court of Canada and the General Anti-Avoidance Rule: Canada Trustco and Mathew – David G. Duff
CHAPTER 2: “Economic Substance”: Drawing the Line Between Legitimate Tax Minimization and Abusive Tax Avoidance – Jinyan Li
CHAPTER 3: The Minister’s Burden under GAAR – Daniel Sandler
CHAPTER 4: The Supreme Court’s GAAR Decisions: Change or Chimera? – Livia Singer and Marilyn Vardy
CHAPTER 5: Window Dressing as Something Other than Sham – Arnold Bornstein
CHAPTER 6: Converging Tracks? Recent Developments in Canadian and U.K. Approaches to Tax Avoidance – Judith Freedman
CHAPTER 7: Tax Avoidance in the United Kingdom, New Zealand, and Australia: The Sun Never Sets on the Judicial Umpire – Harry Erlichman
CHAPTER 8: Retroactivity and the General Anti-Avoidance Rule – Benjamin Alarie
CHAPTER 9: Designing and Implementing a Target-Effective General Anti-Avoidance Rule – Tim Edgar
Table of Cases
“It would be impossible in a short foreword to do justice to the breadth, variety, and brilliance of the essays in this book…. Professor Duff and his co-editor, Mr. Erlichman, are to be commended. They have done a masterly job of assembling the most incisive commentaries on the GAAR that have been produced up to the present. In these papers the conflicting points of view have been canvassed, advanced, pulled apart, and, generally, put in a crucible and subjected to a meticulous and searching analysis. This selection of essays will be an invaluable vade mecum for anyone who has to litigate the GAAR, advise clients about its possible impact on their tax planning, or judge on which side of the rather indistinct line a particular transaction falls. Nobody ever said this was an easy task, but the papers in this book provide a wise and thoughtful exegesis in this difficult and evolving area of the law.”
The Honourable Donald Bowman, Chief Justice of the Tax Court of Canada (from the Foreword)