We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
RGAE: Constatations sur le concept d'abus.
- Authors
Lacroix, Denis
- Abstract
Canada's general anti-avoidance rule (GAAR) establishes a norm. The concept of abuse evolved to be central to that norm. But does this concept make GAAR a precise and inflexible norm, or an unpredictable and adaptable one? When GAAR was adopted in 1988, we knew very little about how the concept of abuse would be applied. The Department of Finance technical notes indicated that the concept related to respect for the object and spirit of the provisions of the Income Tax Act, but were otherwise quite vague as to its application. Twenty-five years and four Supreme Court judgments later, it cannot be said that the criteria to determine the existence of abuse in a particular case are any more precise. It is true that the first two judgments offered a structured analytical framework; however, the third decision reveals a profound division within the court, and the fourth--although it purports to rely on the first two--results in more questions than answers. Thus, it appears that the concept of abuse hinges mainly on a judge's personal appreciation of the fiscal morality of a transaction. This approach provides greater flexibility in the application of GAAR and potentially increases the number of situations where the provision may be invoked; however, it creates a climate of significant uncertainty.
- Subjects
CANADA; CANADA. Supreme Court; LEGAL judgments; INCOME tax laws; CANADA. Dept. of Finance; STATUTORY interpretation; INCOME tax; JURISTIC acts
- Publication
Canadian Tax Journal / Revue Fiscale Canadienne, 2013, Vol 61, p167
- ISSN
0008-5111
- Publication type
Article