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Introduction
2
Business as usual?
28
Appendix
2 | GAAR rising
Other countries are flexing GAARs
long on their books, becoming
bolder about threatening to apply
them or actually applying them.
1989 Ireland
1
The Daily Telegraph, 4th January 2013. www.telegraph.co.uk,
http://www.telegraph.co.uk/news/politics/david-cameron/9779983/david-cameron-
tax-avoiding-foreign-firms-like-starbucks-and-amazon-lack-moral-scruples.html
4 | GAAR rising
Today’s shifting GAAR landscape:
Anti-avoidance rules in the tax law have been around for many
years. Of the 24 countries surveyed for this report, Australia
designed the first in 1915. While the concept of addressing tax Listen to the webcast
avoidance transactions with either a SAAR or a GAAR is hardly
new, the increasing resort to such rules by many governments GAAR rising: a new chapter
in an effort to combat what they perceive to be widespread tax
avoidance is predictable in the current climate. Assessing the
in tax enforcement
frequency with which GAAR is invoked (whether with ultimate
effect or not) is a difficult task, and not all countries publish For the corporate enterprise, the unfolding
statistics. China is one country that does, however, and its trend of new GAAR law presents yet another
2011 report states that 248 GAAR cases were started and layer of uncertainty to be managed. Join our
207 concluded, with taxes collected as a result totaling around team of Ernst & Young professionals as they
CNY24 billion (US$3.81 billion). China considers this as full discuss how the anti-avoidance landscape
justification for continuing to develop its GAAR approach.
continues to take shape, how individual
countries are approaching anti-avoidance
and how companies can proactively manage
all stages of their tax life cycle to reduce the
risk of a controversy arising from GAAR or
other anti-avoidance measures. Our panelists’
viewpoints will be supplemented by recorded
insights from subject matter professionals in
Canada and China.
Moderator:
Featured panelists:
2
http://ec.europa.eu/taxation_customs/resources/documents/taxation/tax_fraud_evasion/
com_2012_722_en.pdf
6 | GAAR rising
The SAT in China intends to incorporate
more internationally accepted practices
into its GAAR. At the same time, the SAT
also noted that a panel review for GAAR
cases might be created in the near future.
Australia’s GAAR legislation has seen much change since its A new circular issued in April 2012 indicates that the SAT
inception nearly a century ago. The 1981 GAAR (known as intends to incorporate more internationally accepted practices
Part IVA) is currently viewed by many stakeholders as one into its GAAR. At the same time, the SAT also noted that a panel
of the most mature and comprehensive in the world. The review for GAAR cases might be created in the near future to
current GAAR was originally designed to replace what had fairly and consistently implement GAAR across the nation.3
been perceived as ineffective anti-avoidance laws. Australia’s A panel review feature is also included in recent GAAR proposals
then-Treasurer John Howard stated that the 1981 rules were in India and the United Kingdom, and it has long been a part
designed to strike down transactions believed to be “blatant, of Australia’s GAAR administration. The SAT plans to issue its
artificial and contrived.” Over the years, the Australian courts updated GAAR implementation rules soon. In designing its rules,
have expanded the GAAR’s scope and reach to apply to what the SAT will no doubt consider the GAARs of other jurisdictions,
many view as normal, commercial transactions. as well as the recommendations of ongoing consultations and
refinements elsewhere.
But more recently, this landscape has changed with the
Australian Government in March 2012 announcing plans to India first proposed a GAAR into its domestic tax law through
amend the GAAR (Part IVA). The Australian Taxation Office the Finance Act 2012 in response to perceived aggressive
(ATO) has lost seven out of nine Part IVA cases in the last three tax planning. The question of “substance over form” has
years, resulting in a call for an overhaul of the provisions. The consistently arisen in the implementation of taxation laws in
announcement to change the law occurred just days after the India. Statutory provisions are intended to codify that doctrine,
High Court refused the ATO’s special leave application to appeal under which the “real intention” of the parties and the effect of
the Full Federal Court decision in RCI Pty Ltd v FCT. the transactions and purpose of an arrangement are taken into
account for determining the tax consequence, regardless of the
On 16 November 2012, Australia’s Assistant Treasurer released
legal structure.
for public comment the exposure draft legislation (ED) and
explanatory materials (EM) for the changes to Australia’s Shortly after the legislative proposals — and in response
GAAR (Part IVA) announced on 1 March 2012. Importantly, to strong criticism from the domestic and global business
the start date of the proposed changes is now altered, to communities — the Indian Government formed an expert
apply to arrangements carried out or commenced on or after committee to address stakeholder concerns. The expert
16 November 2012. The ED is intended to deal with perceived committee report, which was submitted on 1 September 2012,
deficiencies in the operation of Section 177C of Part IVA contained a number of recommendations, including the deferral
(Income Tax Assessment Act 1936), which deals with the of a GAAR to tax year 2016–17, the inclusion of overarching
issue of “tax benefit.” The EM state that the proposed principles to be considered as a pre-condition to GAAR
amendments “are not intended to disturb the operation applicability, the grandfathering of existing investments, some
of Part IVA in any other respect.” limitations on the application of GAARs in respect to income
tax treaties, the formation of an independent Approving Panel
China has a GAAR provision and introduced a substance-over-
and the upholding of the validity of the administrative circular
form principle into its tax regime in January 2009 when the
issued in the context of Mauritius entities.4 The majority of the
State Administration of Taxation (SAT) issued Guoshuifa (2009)
recommendations of the expert committee (including the delay
No. 2 (Circular 2), the trial version of the Implementation
of a GAAR until 2016) were adopted by the government in a
Measures for Special Tax Adjustments. Since then, measures
14th January 2013 press release.
and enforcement efforts, aimed particularly at nonresidents,
have been announced to address situations that China views as
tax avoidance or inappropriate treaty shopping. China’s most
well-known measure in this regard is Circular 698, which raises
significant issues for pre-existing investments in China.
3
See Guoshuifa (2012) No. 41, The work plan of strengthening China’s international tax
administration system, for more information.
4
Report on General Anti-avoidance Rules (GAAR) in Income-tax Act, 1961,
http://www.ey.com/GAARWebcast
5
Graham Aaronson QC, GAAR study: a study to consider whether a general anti-avoidance
rule should be introduced into the UK tax system, 11 November 2011,
http://www.hm-treasury.gov.uk/d/gaar_final_report_111111.pdf
8 | GAAR rising
With GAAR now being introduced in several
countries around the globe, what does this
mean for businesses? Clearly the ability to plan
and execute transactions with a high degree of
certainty will be reduced where governments
rely on the catchall properties of a GAAR.
Anti-avoidance rules typically apply by focusing on the The courts have been instrumental in shaping US tax policy
substance of a transaction or arrangement. When insufficient also, starting with a key articulation of what it means for a
substance is present, GAAR may allow the tax authority to transaction to have “economic substance,” which can be found
change the tax result of a transaction or of steps within the in the 1935 US Supreme Court case of Gregory v. Helvering. The
transaction that it finds objectionable. United States has several common law doctrines that are similar
to many GAAR regimes. These doctrines include the substance-
Anti-avoidance rules generally are aimed at making sure tax
over-form doctrine, the step transaction doctrine, the sham
benefits flow only to their intended beneficiaries by empowering
transaction doctrine, the business purpose doctrine and the
tax authorities to reject claims for benefits that are regarded as
economic substance doctrine. Many of these doctrines overlap
artificial or contrived. While it would be foolish of businesses to
and the doctrines have been applied somewhat differently by
ignore the tax consequences of any transaction, governments
various courts over the years. These differences in judicial
are concerned about the potential for aggressive tax positions
interpretation were part of the impetus for codification of the
that may comply with the letter of the law, but in their view,
economic substance doctrine. In 2010, the Health Care and
may violate its spirit or legislative intent.
Education Reconciliation Act created Section 7701(o), which
defines the economic substance doctrine as the common law
GAAR and the courts doctrine under which certain tax benefits are not allowable if
the transaction either does not have economic substance or
GAAR and other anti-avoidance approaches frequently lacks a business purpose.
utilize subjective criteria, often looking beyond the form of
a transaction to its underlying substance, purpose or intent.
As a result, there is oftentimes a close connection between Typical elements of a GAAR
developments with respect to GAAR and developments in the
Countries develop and implement their GAAR regimes
courts, with litigation arising over the application of GAAR
differently. Some establish independent panels to provide
provisions and pre-GAAR litigation experience often one of the
oversight of the tax authority’s use of GAAR. Some (e.g.,
driving forces for enactment of such provisions.
Ireland, Japan) have explicit treaty override protections, while
The number of controversies litigated based on GAAR or GAAR- others (South Africa, Sweden) do not have specific provisions
like arguments is on the rise around the world, sometimes on this point. And around the world, there is little consistency
involving the first court tests of long-established but rarely used on whether the burden of proof is on the taxpayer or the taxing
or challenged statutes. In December 2011, for example, the Irish authority or is shared between the two. That said, there are a
Supreme Court delivered its first judgment on the Irish GAAR, number of common characteristics generally found in a GAAR.
which has been in place since 1989. In O’Flynn Construction
Governments generally try to achieve one or more of the
Ltd and others v. Revenue Commissioners, the Irish Supreme
following objectives with a GAAR:
Court held, by a 3 to 2 majority, that the transactions carried
out by the taxpayer ran afoul of the GAAR. The court upheld • Codify judicial rulings on what they feel constitutes avoidance
the argument of the Revenue Commissioners that the use of or abuse
specific relief provisions by the taxpayers amounted to a misuse
• Target transactions that may comply with a technical
or abuse of those provisions, in light of the purpose for which
interpretation of the law but that generate tax benefits the
the relief was provided.
government considers to be unintended or inconsistent with
Litigation over anti-avoidance provisions can also lead the spirit of the law
governments to respond by adjusting their GAAR approach.
• Define what constitutes an artificial scheme, transaction or
Where a government sees the courts siding with taxpayers on
arrangement that has been concocted to extract a tax benefit
a relatively frequent basis, the legislature sometimes responds
by enacting a stronger GAAR or more targeted provisions. After • Apply some type of substance or purpose test as a filter for
losing the Vodafone case in its Supreme Court, for example, determining whether a transaction is legitimate
the Indian Government proposed a change to existing law that
would allow the tax authority to look back 50 years to challenge
similar transactions. That proposed change is now under review.
10 | GAAR rising
“...tax considerations may play a primary role
in a taxpayer’s choice of available structuring
A core question when considering options to implement a transaction or series
GAAR — and often a difficult question to of transactions without necessarily making
answer — is what types of transactions or the transaction itself primarily tax motivated.”
arrangements are potentially subject to — Justice Boyle of the Tax Court of Canada,
challenge under the particular GAAR. Spruce Credit Union v. The Queen, 2012 TCC
• Provide the tax authority a mechanism to recharacterize An arrangement that is the subject to GAAR is further
or disregard a transaction or otherwise eliminate the tax defined as having the main purpose of attracting a tax benefit
benefits claimed and either:6
• Allow the imposition of special assessments, penalties and • Not having a bona fide purpose
interest where violations are determined
• Creating rights and obligations that would not normally
• Provide the taxpayer with reconstructive relief so they pay be present between two parties dealing at arm’s length
only the new tax or penalties assessed by the authority
• Resulting, directly or indirectly, in the misuse or abuse of
(i.e., they avoid domestic double taxation on a transaction),
the provisions of the DTC
although this would not necessarily provide relief in a
cross-border situation Or
• If a transaction is an avoidance transaction, did it result in a The Brazilian Government has attempted to enact legislation
misuse of the provisions of the (Income Tax) Act, Income Tax providing such procedures, but the provisions were widely
Regulations, Income Tax Application Rules, a tax treaty, or any criticized and it was not approved by the Brazilian Congress.
other legislation relevant in computing tax or amounts payable Despite the substantial uncertainty created by this unsettled
or refundable under the Act, or did it result in an abuse with situation, the Brazilian tax authorities issue tax assessments
regard to these provisions (other than section 245 of the Act) using the anti-avoidance rule as a legal basis. In making these
read as a whole? assessments, tax inspectors are disregarding the fact that the
rule is structured so as not to be applicable in the absence of the
This approach, which reflects significant subjective elements, required procedural rules.
is consistent with the approaches in many other countries,
underscoring the uncertainties inherent in the use of a GAAR. Not only is every country unique in its definition of what is
considered to constitute abuse, but many countries’ application
In India, the tax authorities start from the use of the term of a GAAR also presents taxpayers with anomalies that require
“arrangement.” Under the current Direct Taxes Code (DTC), close attention and understanding.
an arrangement refers to any step, part or whole transaction,
scheme, operation, contract, agreement or understanding.
6
Ernst & Young LLP, Deciphering the Direct Tax Code, 2010.
• A reduction, avoidance or deferral of income • The taxpayer has a substantial purpose (apart from federal
income tax effects) for entering into the transaction
• An increase in a deduction, rebate or refund of tax or other
amount In Australia, the test requires an objective analysis of eight
factors to determine whether the scheme was entered into or
• A reduction, avoidance or deferral of tax or other amount that
carried out for the “dominant purpose” of enabling the taxpayer
would be payable but for a tax treaty
to obtain the tax benefit(s). Those factors include:
• An increase in a refund of tax or other amount as a result of a
i. Manner in which the scheme was carried out
tax treaty
ii. Form and substance of the scheme
• A reduction in tax base, including an increase in loss, in the
relevant financial year or any other financial year iii. Timing of the scheme and length/duration of the scheme
How each country identifies and quantifies a tax benefit is as iv. The result that would otherwise be achieved by the scheme
varied as the ways in which they each define a transaction or
v. Change in financial position of the taxpayer as a result of
arrangement potentially falling within the scope of the GAAR.
the scheme
Again, close understanding of each country’s definitions — and
how those definitions may change as a country reviews and vi. Any change in the financial position of any person
refines its GAAR — is an imperative for business. connected with the relevant taxpayer as a result of the
scheme
In Australia, for example, the litmus test is whether there is
another way that the taxpayer could have achieved the same vii. Any other consequences for the relevant taxpayer or any
commercial results without obtaining the tax benefit (i.e., the person referred in part vi. above, as a result of the scheme
counter factual). being carried out
12 | GAAR rising
In some jurisdictions, the invocation of
GAARs is recognized as so sensitive that
panels have been established to oversee or
provide advice regarding its application.
Use of a GAAR “review panel” Table 2: Upon whom is the burden of proof?
Australia Taxpayer
In some jurisdictions, the invocation of GAAR is recognized as
so significant that panels have been established to oversee or Belgium Tax authority
provide advice regarding its application. Australia and France
have GAAR panels, and it is proposed that India and the United Brazil Taxpayer
Kingdom will also establish such panels.
Canada Shared
There have also been calls for a GAAR-type panel to be
introduced in South Africa, but there have been no specific China Taxpayer
developments in this regard yet. France Tax authority
GAAR administration should involve an independent
Germany Shared
consultancy panel to make sure consistency, fairness and
equity are afforded to taxpayers. The development of the India Tax authority (proposed)
United Kingdom’s GAAR proposal (among others) demonstrates
how much importance is attached to the composition and role Indonesia Shared
of a review panel. The consultation document proposes the
Ireland Taxpayer
establishment of an Advisory Panel as recommended by an
independent report on GAAR issued in 2011. It is proposed that Italy Tax authority
the Advisory Panel will advise on the application of the GAAR
to particular transactions and approve guidance produced Japan Tax authority
by Her Majesty’s Revenue and Customs (HMRC) that must be Mexico Tax authority
taken into account by a court in determining whether the GAAR
applies in a particular scenario. This panel is expected to have The Netherlands Tax authority
significant influence over how the GAAR will apply in practice,
and the composition and operational mechanics of the panel are Poland Shared
therefore critical in determining whether the GAAR achieves its Russia Taxpayer
intended objectives.
Singapore Taxpayer
Sweden Taxpayer
Switzerland Shared
Turkey Shared
Mechanisms to cancel These three examples illustrate the variation in penalty and
interest costs associated with the application of a GAAR.
Most GAARs empower tax administrators to cancel or otherwise Moreover, as a GAAR case can take many years to reach
disallow benefits they determine are obtained using an improper conclusion, the final interest or penalty interest charges can
scheme, transaction or arrangement. In some cases, the tax reach a multiple of the underlying tax cost.
authority will recharacterize the arrangement or transaction
Finally, it is worth noting that most GAARs do provide some
consistent with its determination regarding the substance.
form of reconstructive relief so that the taxpayer pays only the
new taxes and penalties and/or interest assessed. Under this
process, the taxpayer continues to be protected from domestic
double taxation.
14 | GAAR rising
When is a GAAR not a GAAR:
when it’s a GAA(b)R?
The lexicon of anti-avoidance varies by country.
The introduction of a GAAR regime poses the significant The tax authority reclassified the transaction as a direct
question of whether the GAAR will apply to an arrangement or transfer of the shares by disregarding the existence of the
transaction that has already been subject to one or more of the Singapore SPV. The case was reviewed and approved by the
SAAR measures that are in place in the local jurisdiction. SAT centrally and may have had an influence on the SAT’s
subsequent issuance of Circular 698 in 2010. With Circular 698
Perhaps not surprisingly, there seems to be little or no
now in place, it is clear that dispositions by foreign investors
consistency among countries on this question. Germany,
of the stock of intermediate holding companies that hold
for example, provides that GAAR is not to be applied to any
equity interests in a Chinese company are under scrutiny in
arrangement or transaction that has passed muster under an
China. Moreover, under Circular 698, in situations where the
applicable SAAR test. Canada, by contrast, is an example of
jurisdiction of the intermediate holding company imposes little
a country where the GAAR regime may apply in spite of and
or no tax on foreign source income, the transferor is required
in addition to an applicable SAAR provision. Indeed, this is a
to make significant disclosures to the local China in-charge tax
common characteristic of the regimes of many common-law
bureau regarding the details of the transfer.
countries.
Chile recently became the latest country seeking to widen its
A key concern of tax professionals regarding countries’
tax net in this way. A new law addresses indirect transfers of
development of new or strengthened regimes is the risk
Chilean assets and will have a potentially significant effect on
of introducing a GAAR that is hastily designed and prone to
foreign investors in Chile, with the legislation targeting gains on
scope creep. Such a GAAR could encroach upon (and in some
an indirect disposal of assets in Chile if the buyer acquires a 10%
cases subsume) existing SAAR provisions that may be long-
or greater interest in such assets. Under the new law, the tax
standing, thus creating additional uncertainty and greater
could be collected from the seller, the buyer or their agents in
compliance burdens for multinational companies. Some
Chile or from the transferred Chilean assets.
countries have begun to recognize this risk, including, for
example, India, which has backed off its original proposal for
immediate implementation of a GAAR and has formed an
expert committee that has advised that implementation of
the proposed GAAR should be deferred several years.
16 | GAAR rising
“To me, the GAAR panel ... should be advisory.”
— Dr. Tizhong Liao
18 | GAAR rising
Even where application of domestic
law GAAR measures is not explicitly
provided for in tax treaties, some countries
are unilaterally applying anti-avoidance
measures to their existing treaties.
The approach that has been taken by China provides an example Table 3: Examples of 2011-12 tax treaties containing specific reference to the
application of domestic anti-avoidance rules in the treaty context
of this phenomenon. The 2010 protocol amending the 2000
China-Barbados tax treaty includes a provision that allows
2011 — Barbados* — Czech Republic tax treaty
the Chinese tax authority to apply its GAAR regime to restrict
the benefits of the treaty in certain cases. Article 4 of the 2011 — Ethiopia — Egypt tax treaty
protocol provides: ”The provisions of this Agreement shall in
2011 — United Arab Emirates — Estonia tax treaty
no case prevent a Contracting State from the application of the
provisions of its domestic laws aiming at the prevention of fiscal 2011 — India — Ethiopia tax treaty
evasion and avoidance, provided that the taxation in that State
2011 — Cyprus — Germany tax treaty
on the income concerned is not contrary to this Agreement.”
About half of the tax treaties that have been signed by China 2011 — Hungary — Germany tax treaty
subsequent to this agreement with Barbados have included 2011 — Mauritius — Germany tax treaty
a similar provision allowing the application of domestic
GAAR provisions. 2011 — Spain — Germany tax treaty
Even where application of domestic law GAAR measures is 2011 — Turkey — Germany tax treaty
not explicitly provided for in tax treaties, some countries are
2011 — Taiwan — Germany tax treaty
unilaterally applying anti-avoidance measures to their existing
treaties. The position taken by India in the Vodafone case is 2011 — Malta — Hong Kong tax treaty
an example of such an approach. The interpretation of the
2011 — Portugal — Hong Kong tax treaty
concept of beneficial ownership in China’s Circular 601 is
another example. 2011 — Spain — Hong Kong tax treaty
Our survey of 24 countries shows that approximately half allow 2011 — Switzerland — Hong Kong tax treaty
their GAAR provisions to override existing tax treaties, either by
overriding the treaty unilaterally or by agreeing in the treaty to 2011 — Estonia — India tax treaty
allow application of domestic GAAR. The potential application of 2011 — Tanzania — India tax treaty
domestic anti-avoidance rules in the tax treaty context creates
a particularly high degree of uncertainty for multinationals and 2011 — Malta — Israel tax treaty
can have implications for their tax treatment not just in the
2011 — Spain — Singapore tax treaty
source jurisdiction that is applying its GAAR provisions but
also in the residence jurisdiction. 2012 — Colombia* — Czech Republic tax treaty
Businesses that are operating in multiple countries would 2012 — Ireland — Germany tax treaty
benefit from a common understanding of GAAR, which could
2012 — The Netherlands — Germany tax treaty
be advanced through multilateral organizations such as the
European Commission, the OECD and the United Nations Tax 2012 — Czech Republic — Hong Kong tax treaty
Committee. The operation of GAAR in the treaty context should
be agreed bilaterally and reflected in the treaty itself. 2012 — Jersey — Hong Kong tax treaty
The challenge — some would say a near impossibility — for any • Dominant purpose test: GAAR should only apply in scenarios
GAAR regime is to target tax avoidance without hampering where it is clear that the relevant transaction (or arrangement
taxpayers’ ability to engage in legitimate business activity. or scheme) has a dominant purpose of obtaining a tax benefit.
The very nature of a GAAR involves substantial subjective It should not, as was originally proposed under the Indian
judgment on the part of tax administrators. As such, there is a GAAR for example, be used to strike down an arrangement
critical need for clear guidance as to the scope and application even where there is an incidental (but not dominant) purpose
of a GAAR, including detailed examples of what is and is not of obtaining a tax benefit.
permitted. Moreover, the need for such guidance is ongoing as
• Exclusions: there are some situations and areas that
both tax law and the GAAR regime evolve and develop.
legislators will want to specifically exclude; for instance, clear
With this in mind, what are the key elements in this balancing tax-motivated choices that are intended to motivate taxpayer
act aimed at achieving a GAAR that appropriately targets behavior and/or certain business activity (such as targeted tax
arrangements and transactions that are inappropriately incentives or credits) should not be caught under the GAAR
artificial and contrived and that is clear, consistent and legislation. The exclusions should be clearly delineated within
constrained in its application? the statute.
• Engage with all stakeholders: countries with the most stable, • Penalty regime: penalties are a necessary deterrence in some
consistent and clear tax laws are those that engage actively situations, and there are frequently separate penalty regimes
with business during the development phase. for violations of a GAAR provision. Care should be exercised in
applying penalties where the law is uncertain, however, and the
• Clearly defined language under the statute: some of the
use of strict liability penalties should be avoided.
greatest uncertainties in tax laws around the world are driven
by the use of words that are loose in their meaning and open to
significantly varied interpretations. Provisions should be clear
in their meaning and their application.
20 | GAAR rising
Some of the greatest uncertainties in tax
laws around the world are driven by the use
of words that are loose in their meaning and
open to significantly varied interpretations.
Provisions should be clear in their meaning
and their application.
Administration
A poorly or inappropriately administered GAAR regime can
lead to excessive controversy and litigation with the result that
administrators and taxpayers waste limited time and resources.
The following three suggestions may help reduce these
inefficiencies:
22 | GAAR rising
The presence of a GAAR regime does not affect the
need to plan appropriately taking into account tax
consequences. Rather, it means that tax planning
should continue in a thoughtful manner, with
practical steps taken through all stages of the tax life
cycle to protect the business from a GAAR challenge.
Monitoring
8 questions for the C-suite The global tax landscape continues to shift and change at an
and board to ask in relation increasingly fast pace. This is apparent in the evolving approach
to tax enforcement and the growing implementation of new or
to GAAR strengthened GAAR regimes. In that regard, making sure that
new proposals for GAAR, SAAR and TAAR are continuously
monitored and factored into the tax life cycle is an imperative
for any multinational business. Having detailed, up-to-
Does the transaction/structure have a valid
1 commercial purpose?
date and accurate information available is essential so that
transactions are measured against the most current rules in
each jurisdiction.
Is the transaction/structure unique and
2 complex?
Planning
The presence of a GAAR regime does not affect the need to
Is the tax benefit material to the financial
3 statement?
plan appropriately, including the consideration of potential
tax consequences. Rather, it means that tax planning should
continue in a thoughtful manner, with practical steps taken
through all stages of the tax life cycle to protect the business
Could the transaction/structure be
from a GAAR challenge. In particular, all alternatives should
4 undertaken in a different manner, without
continue to be considered as part of the planning approach, and
attracting the potential application of
sufficient documentation should be maintained to support the
GAAR?
decisions taken.
5
Has an opinion been obtained that the
transaction/structure will more likely than
Defense files
not withstand a GAAR challenge? Contemporaneous documentation can be valuable in defending
a company’s position against a GAAR challenge. Making sure
there are documents that set out the intended purpose of the
Is the transaction/structure defendable in
6 the public eye?
overall transaction, as well as each step within the transaction,
can significantly enhance a taxpayer’s position in forestalling or
defending against such a challenge.
What is the corporation’s tax risk profile Additionally, documentation outlining the consideration of
7 both globally and locally? alternative options in relation to the transaction settled upon
is, in some jurisdictions, critical in demonstrating that the final
position taken was the only one that could reasonably be carried
How comfortable is the corporation with out to obtain the commercial objectives sought, and that there
8 litigation if it is required to defend the were no transactional steps taken that were explicable only in
transaction/structure? the context of obtaining a tax benefit.
7
Ernst & Young, 2011-12 Tax risk and controversy survey, www.ey.com/taxrisksurvey.
8
ASC 740/FIN 48 definition — “recognition” paragraph 6.
24 | GAAR rising
When taking a position in relation to
Part IVA in Australia, it is critical that advice
has been sought to determine a “more likely
to be correct than incorrect” position that
Part IVA would not apply to the transaction.
Australia: reportable tax positions not constitute a reportable transaction. To this end, when
and Schedule RTP taking a position in relation to Part IVA in Australia, it is critical
that advice has been sought to determine a “more likely to be
The ATO introduced Schedule RTP for the year ended 30 June correct than incorrect” position that Part IVA would not apply
2012, applicable to a select number of large business taxpayers. to the transaction.
The uniqueness of Schedule RTP is that it was introduced by
the ATO in the absence of an Australian equivalent accounting One issue with Category A is that the application of Part IVA
standard to FIN 48/ASC 740 in the United States. is based on a determination made by the Commissioner of
Taxation. Putting oneself in the shoes of the Commissioner is a
Schedule RTP has three alternate categories, each of which challenging proposition. Understanding how the Commissioner
requires a position to be reported: may come to a decision is, at best, difficult.
A. Tax uncertainty in your tax return. A position that is either Category B requires disclosure where a reserve has been
as likely to be correct as incorrect or less likely to be correct created in the taxpayer’s (or a related party’s) financial
than incorrect is taken in the tax return. statements in accordance with Australia’s accounting principles.
B. Tax uncertainty in financial statements. A position in respect This is similar to the approach under IRS Schedule UTP and
of which uncertainty about taxes payable or recoverable seeks to identify positions where reserves have been created
is recognized and or/disclosed in the taxpayer’s financial that fall outside Category A.
statements or a related party’s financial statements. Category C is related to events involving the disposal of assets.
C. Reportable transactions or events. Disclosure is required where all of the following apply:
Under Category A, where a taxpayer has taken a position that • There is a disposal of a capital asset.
Part IVA (Australia’s GAAR regime) would not apply and that • The capital proceeds exceed A$200 million.
position is considered to be reasonably arguable, such position
would not be required to be disclosed. Additionally, the taxpayer • There is significant disparity between the accounting and tax
must take reasonable care in determining that Part IVA did not outcomes on the disposal of the asset.
apply. In this context, the taxpayer must consider all relevant • The difference between the accounting and tax outcomes is
matters under the relevant authorities (e.g., rulings and material.
case law).
Disclosure of a Part IVA position may be required under
In a practical sense, where a taxpayer has undertaken a Category C, notwithstanding that there is a likelihood of greater
transaction and received advice that its Part IVA position is than 50% that the position is correct (and so Category A does
reasonably arguable, and where it did so in a manner which a not apply) and no reserve/provision has been made in the
court would view as taking “reasonable care,” then this would financial statements (so Category B does not apply).
Defending a GAAR position is not merely a matter of technical Countries providing Australia, Belgium, Canada, France,
argument. Rather, it is an objective analysis of the evidence and GAAR rulings/ Germany, India (proposed), Italy,
clearances the Netherlands, Poland, Singapore,
facts in relation to a particular transaction.
Sweden, Switzerland, Turkey
The manner in which a corporation engages with a tax authority
seeking to invoke GAAR during an examination is therefore
Countries not Brazil, China, Indonesia, Ireland,
critical. If the process is not managed appropriately from the
providing GAAR Japan, South Africa, South Korea,
outset, the opportunity to strongly defend a position may be rulings/clearances United Kingdom (proposed)
reduced or lost, which in turn could adversely affect future
settlement negotiations or future litigation. With this in mind,
it is important to determine an appropriate strategy from the
outset, paying close regard to the process that is used by the
tax authorities for invoking GAAR, as well as the corporation’s Process for invoking GAAR
rights and obligations as a taxpayer throughout the process.
The process for invoking GAAR differs significantly from
A key consideration in today’s environment is how and when jurisdiction to jurisdiction.
the corporation discloses a position to a revenue authority.
If the corporation is part of an enhanced relationship process In Australia, for example, the process for invoking GAAR
— such as Horizontal Monitoring (the Netherlands), Compliance requires significant dialogue between the ATO and the taxpayer.
Assurance Process (United States), Annual Compliance The process (pursuant to paragraphs 14 to 43 of PS LA
Agreement (Australia) or something similar — it is likely that the 2005/24) typically follows these steps:
transaction will be disclosed at an early stage of the process. • An audit of the particular transaction occurs.
Many M&A–type transactions receive media attention prior to • The auditor is expected to raise the matter with the ATO’s
being fully executed, and revenue authorities may ask questions internal Tax Counsel Network (TCN).
about form and substance of the transactions at this early
stage. Therefore, robust defense files created at the time of • The TCN raises the matter with the Deputy Chief Tax Counsel,
the transaction, which contain contemporaneous who then determines the ATO’s position.
documentation, will be critical in explaining and ultimately • A position paper is issued to the taxpayer outlining the ATO’s
defending the position to a revenue authority. position in relation to the application of GAAR, with a right of
response by the taxpayer.
Alternative dispute resolution • The matter is then referred to the GAAR Panel, which has the
final input before a Part IVA determination is made.
Some — but certainly not all — tax authorities provide clearance
mechanisms to taxpayers at the pre-filing stage. These The process in many other countries is far simpler, with the
procedures may apply to questions regarding the potential taxing authority simply notifying the taxpayer that GAAR is
application of GAAR. It may be wise to seek certainty up front, being invoked. The country appendix to this report provides
potentially eliminating the need to defend the position through detailed information on how GAAR may be invoked.
an audit or to deal with complex issues such as provisioning
and disclosure.
26 | GAAR rising
In some jurisdictions, panels — generally
either fully or semi-independent — have been
established to oversee or provide advice
as to the process for invoking GAAR.
93%
advice as to the process for invoking GAAR. While the existence of participants felt
of a panel generally demonstrates that government takes the
rights of taxpayers seriously, many commentators question that more countries
whether such a panel can be of value if one (or more) of its will introduce a GAAR
members is from the taxing authority. Others argue that the in the future
taxing authority should be present.
16%
In some countries the taxpayer is either invited to or permitted
to attend a GAAR panel. In some circumstances, taxpayers may
of participants take
choose not to appear before a GAAR panel even if the taxpayer a specific tax risk
has been invited by the tax authority. In other cases, the management approach
taxpayer is not allowed to be present while the auditor presents to each and every
its case to the panel even though the auditor is permitted to be
present throughout the taxpayer’s submission. transaction
Where a panel is in place, taxpayers will have to make decisions
36%
on how to engage with it and include this as part of their overall of participants
strategy for managing tax risk. take an informal
approach, picking
which transactions to
assess from a GAAR
standpoint
30%
of participants do
not address GAAR
within their tax
risk management
approach
9
Gregory v. Helvering, 69 F.2d 809 (2nd Cir. 1934).
28 | GAAR rising
Many taxpayers and tax practitioners believe
the appropriate response to tax avoidance
concerns is for tax authorities to amend (on a
prospective basis) the relevant laws or treaties,
rather than attempt to apply GAAR (or SAAR) to
upset settled expectations under local laws.
Brazil Poland
36 64
Canada Russia
38 66
China Singapore
42 68
India Sweden
50 74
Indonesia Switzerland
52 76
Ireland Turkey
54 78
Italy United
56 Kingdom
80
Japan
58 United States
84
Mexico
60
32 | GAAR rising
Contacts:
Australia
Alf Capito
alf.capito@au.ey.com
+61 2 8295 6473
Howard Adams
howard.adams@au.ey.com
+61 2 9248 5601
For further information, refer to Can the GAAR override treaties when Are there any legislative proposals or open
paragraph 25 of PS LA 2005/24, invoked? consultations that may affect the future
Application of General Anti-Avoidance composition of a GAAR?
Yes.
Rules. On 16 November 2012, Australia’s
What penalties may result from the GAAR Assistant Treasurer released for public
Does your country have a GAAR Panel? being invoked? comment the exposure draft legislation
If yes, do taxpayers carry out strategic (ED) and explanatory materials (EM)
decision-making as to whether they appear Generally, where a GAAR is applied,
for the changes to Australia’s GAAR
before the Panel or not? penalties will be levied at 25% of the
(Part IVA) announced on 1 March 2012.
tax shortfall where the taxpayer has
Yes. However, this is an advisory body Importantly, the start date of the
a “reasonably arguable position” that
and the ATO is not bound by its decision. proposed changes is now altered, to
the GAAR does not apply. If a taxpayer
The GAAR Panel consists of members does not have a reasonably arguable apply to arrangements carried out or
from the ATO as well as external position, the penalty is then applied at commenced on or after 16 November
advisors. The ATO audit team and the 50% of the tax shortfall. Note that all tax 2012. The ED is intended to deal with
taxpayer (or their representatives) have adjustments (including the GAAR) are perceived deficiencies in the operation
the opportunity to present their case to also subject to a general interest charge of Section 177C of Part IVA (Income Tax
the GAAR Panel, but it is not compulsory at penalty rates. Assessment Act 1936), which deals with
for the taxpayer to present his or her the issue of “tax benefit.” The EM states
case. While the ATO audit member can Please provide a summary of key judicial that the proposed amendments ... “are
be present when the taxpayer presents decisions involving the GAAR or other anti- not intended to disturb the operation of
its case, the taxpayer cannot be present abuse legislation. Part IVA in any other respect.”
when the ATO audit team member Key judicial decisions
presents the ATO’s case to the Panel.
Part IVA has been around for more than
The GAAR Panel does not generally 30 years, so there are a number of key
consider operation of the GAAR. Its judicial decisions that relate to how it is
primary objective is to make sure that the interpreted. The major decisions are:
GAAR has been properly applied to facts.
Oral presentation is limited to matters • Federal Commissioner of Taxation v.
raised in written submission. Generally, a Peabody (1994) HCA 43
taxpayer’s oral presentation is limited by • Federal Commissioner of Taxation v.
facts presented in written position, but Spotless Services Limited, 96 ATC
this does not preclude further argument 5201
in disputing an assessment.
• Federal Commissioner of Taxation v.
Hart (2004) HCA 26
What is the general attitude of the tax
authority toward invoking a GAAR? • RCI Pty Ltd v. Federal Commissioner of
The GAAR is a provision of last resort. Taxation (2011) FCAFC 104
However, it has become common • Federal Commissioner of Taxation v.
practice of the ATO to apply the GAAR News Australia Holdings Pty Ltd (2010)
as an alternative to any substantive law FCAFC 78
arguments it raises in the first instance,
• Federal Commissioner of Taxation
particularly in a large business corporate
v. Futuris Corporation Ltd (2012)
environment.
FCAFC 32
Is a clearance/rulings mechanism available? • Macquarie Finance Limited v. Federal
Commissioner of Taxation (2005)
Taxpayers may seek to obtain a private FCAFC 205
ruling from the ATO as to whether the
GAAR will apply to an arrangement.
Belgium
Herwig Joosten
herwig.joosten@be.ey.com
+32 2 774 9349
Philippe Renier
philippe.renier@hvglaw.be
+32 2 774 9584
assessed in the light of the concept inheritance tax and registration duties lead to the successful application of the
“wholly artificial arrangements,” as put purposes. current GAAR.
forward in the case law of the Court of
Examples of case law relating to the old
Justice of the European Union. Is a clearance/ruling mechanism available GAAR include:
concerning the GAAR?
Is the onus on the taxpayer or the taxing • Transfer of profits to an intermediary
Yes, rulings can be requested on the
authority to provide the burden of proof? company — Supreme Court decision
existence of other motives than tax
of 10 June 2010: two profitable
Burden of proof of abuse of tax law is on motives.
companies paid a substantial
the tax authorities. In case this proof is
management fee to a related loss-
delivered, it is up to the taxpayer to prove Does your country have a GAAR Panel? making company. The latter outsourced
the existence of motives for the act other If yes, do taxpayers carry out strategic
decision-making as to whether they appear
its management task to a third related
than tax motives.
before the Panel or not? company for a much lower fee. The
Belgian tax authorities considered that
What is the administrative/audit process No. the interposition of the loss-making
for invoking the GAAR?
company was only designed to increase
Normal procedure: Can the GAAR override treaties when its tax base in order to allow it to offset
invoked? its losses.
• Notice of amendment of the tax return
is issued by the tax authorities in which According to the tax authorities, the • The legal act is recharacterized into
application of GAAR is announced — GAAR can override tax treaties. Belgium a combination of a direct payment
possibility for the taxpayer to comment also made no reservation to section 22 by the two profitable companies of a
of the OECD Commentary to article 1 of management fee to the third related
• Assessment with application of GAAR the OECD Model Tax Convention, which
in case the tax authorities do not follow company and a gift to the loss-making
allows the application of domestic anti- company.
the position of the taxpayer abuse provisions to situations to which
a treaty applies. For treaties expressly • Letting/subletting — Supreme Court
What is the general attitude of the tax allowing the application of domestic decision of 21 April 2005: in case of the
authority toward invoking the GAAR? anti-avoidance measures, the GAAR will lease of real estate by a director to his
Before tax year 2013 (i.e., under override the treaty. For treaties that do company, income tax law provides for
the previous version of the GAAR), not expressly allow the application of the recharacterization of the nature of
the application of GAAR by the tax domestic anti-avoidance measures, there the excessive part of rental income into
authorities was not widely accepted is no clear-cut answer. A few judgments professional income. In order to avoid
in case law, since the courts required have been rendered on this issue in which this recharacterization, the director let
that the new characterization adopted the application of a domestic anti-abuse the property to a third person, who in
by the tax authorities had similar legal provision has been disallowed. However, turn let the property to the company of
consequences as the characterization case law on this issue at this time is not the director. The Supreme Court allows
adopted by the taxpayer. This sufficiently substantive to consider the the recharacterization into a direct rent
requirement was not often met in cases issue resolved. of the property by the director to his
concerning the recharacterization of company.
stand-alone legal acts. Most cases of What penalties may result from the GAAR • Letting/subletting — Supreme Court
successful recharacterization pertained being invoked? decision of 11 December 2008:
to steps to transactions. The legal act to which the GAAR is a direct lease of real estate (for which
As of tax year 2013, (i.e., under the effectively applied is considered not to the taxable basis is based on the real
current GAAR), the existence of similar constitute tax fraud. Although additional rental income) is replaced with a lease-
legal consequences is not required. The tax may be due, there are no specific sublease (for which the taxable basis is
general attitude of the tax authorities is penalties related to GAAR. based on a lower notional income). The
unknown, as the provision has not yet legal act is recharacterized into a direct
led to effective (reported) application Please provide a summary of key judicial
lease.
by them. decisions involving the GAAR or other anti-
abuse legislation. Are there any legislative proposals or open
The tax authorities have issued consultations that may affect the future
an administrative circular without There is not yet any case law on the composition of a GAAR?
information on the practical application current provision.
No, the law has recently been changed.
of the GAAR for income tax purposes. In principle, situations that led to case
They have issued a second administrative law allowing recharacterization under
circular with practical examples for the previous GAAR regime, would also
36 | GAAR rising
Contacts:
Brazil
Romero Tavares
romero.tavares@br.ey.com
+55 1 12 112 5444
Julio Assis
julio.assis@br.ey.com
+55 1 12 112 5309
What are the circumstances in which the Is a clearance or ruling mechanism Please provide a summary of key judicial
GAAR can be invoked? available for a GAAR? decisions involving the GAAR or other anti-
abuse legislation.
There is no specific procedure. GAAR is No.
invoked by the inspector during the audit The bulk of discussions have been at
and presented to the taxpayer in the tax Does your country have a GAAR Panel? the administrative level, but some
infraction notice. If yes, do taxpayers carry out strategic have reached the judicial level. We can
decision-making as to whether they appear comment on two cases of downstream
before the Panel or not? mergers. In the Rexnord case, judges
Is the onus on the taxpayer or the taxing
authority to provide the burden of proof? No. construed that the transaction’s
underlying intention was solely to reduce
In practical terms, the burden of proof is
Can the GAAR override treaties when
the tax burden. In the Josapar case,
with the taxpayer, who needs to provide
invoked? judges concluded that the merger was
evidence of other non-tax reasons
upstream instead of downstream as
embedded in the challenged transaction. Such subject is under discussion in reported.
administrative courts.
What is the administrative/audit process
Are there any legislative proposals or open
for invoking the GAAR? What penalties may typically result from consultations that may affect the future
There is no specific procedure. GAAR is GAAR being invoked? composition of the GAAR?
invoked by the inspector during the audit Usually tax authorities apply qualified The Regulatory Law has been discussed
and presented to the taxpayer in the tax penalties when the GAAR is invoked. in several forums for 11 years, but it
infraction notice. Qualified penalties may reach 150% to seems to be far from becoming enacted.
225% over the principal.
What is the general attitude of the tax
authority toward invoking the GAAR?
The tax authority has demonstrated no
particular attitude in this area.
38 | GAAR rising
Contacts:
Canada
Gary Zed
gary.zed@ca.ey.com
+1 403 206 5052
Greg Boehmer
greg.c.boehmer@ca.ey.com
+1 416 943 3463
Transfer pricing adjustments: where There are two significant limitations to It is now well established that the
a taxpayer has participated in a non- the application of GAAR. application of GAAR requires an answer
arm’s-length transaction or series of for each of the following three questions:
The first is found in the definition of
transactions the income of the taxpayer
avoidance transaction. An avoidance 1. Did the transaction (or series of
may be adjusted to the extent that “the
transaction is defined, in subsection transactions that includes the
terms or conditions made or imposed,
245(3), as a transaction that alone or as transaction) result in a tax benefit?
in respect of the transaction or series,
part of a series of transactions results 2. If so, is the transaction or any
between any of the participants in the
in a tax benefit of any kind. However, it transaction in the series an avoidance
transaction or series differ from those
does not include transactions arranged transaction? A transaction is not
that would have been made between
primarily for bona fide purposes other an avoidance transaction if it can
persons dealing at arm’s length.”
than obtaining a tax benefit. reasonably be considered to have been
The CRA is permitted to recharacterize
The second limitation is that the GAAR undertaken primarily for a bona fide
a transaction if it would not have taken
applies only to transactions that result in purpose other than to obtain the tax
place at arm’s length and there was no
benefit in question.
bona fide reason for the transaction • A misuse of the provisions of the Act,
other than to obtain a tax benefit (in Income Tax Regulations, Income Tax 3. If a transaction is an avoidance
other words, if the transaction did Application Rules, a tax treaty, or any transaction, did it result in a misuse of
not have a substantial, valid business other relevant legislation the provisions of the Act, Income Tax
purpose). Regulations, Income Tax Application
Or
Rules, a tax treaty, or any other
What are the circumstances in which the
• An abuse having regard to any of these legislation relevant in computing tax or
GAAR can be invoked? provisions read as a whole. amounts payable or refundable under
In other words, if an avoidance the Act, or an abuse having regard to
Where there is a “tax benefit” arising in
transaction does not involve a misuse or these provisions (other than section
an “avoidance transaction” (includes a
abuse, the GAAR does not apply. 245 of the Act) read as a whole?
series each element of which is judged
on its own; a transaction not undertaken On 19 October 2005, the Supreme Court Is the onus on the taxpayer or the taxing
primarily for bona fide purposes other of Canada decided its first two GAAR authority to provide the burden of proof?
than to get the tax benefit) where an cases: The Queen v. Canada Trustco
abuse of the Act or a misuse of its Mortgage Co.,1 and Mathew v. The The onus is on the taxpayer to prove no
provisions results, even in the absence Queen.2 In Canada Trustco, the Supreme tax benefit or no avoidance transaction;
of a GAAR, the transaction is otherwise Court established a number of useful the onus is on the tax authority to show
compliant with the Act. guidelines for applying the GAAR. The abuse or misuse.
Subsection 245(2) of the Act establishes court decided another GAAR case, Lipson
et al. v. The Queen,3 on 8 January 2009, What is the administrative/audit process
the basic conditions for the application
and generally confirmed its approach for invoking the GAAR?
of the GAAR. The subsection is broadly
worded, stating that the GAAR applies as set out in Canada Trustco. These The tax authority asserts it. In most
to any transaction that is an avoidance cases and the Tax Court of Canada and cases the application is reviewed by a
transaction. If it applies, the tax Federal Court of Appeal decisions that committee of senior CRA, Department of
consequences “shall be determined as interpret them are now the main points Finance and Justice officers (the “GAAR
is reasonable in the circumstances in of reference for interpreting GAAR. Committee”). The GAAR Committee
order to deny a tax benefit that, but for That being said, it is sometimes difficult has no legal authority as such and is an
this section, would result, directly or to reconcile the recent Tax Court and informal group established to ensure the
indirectly, from that transaction or from Federal Court of Appeal decisions that consistent application of the GAAR.
a series of transactions that includes that purport to apply the Supreme Court
transaction.” guidelines. This may be explained by the
fact that GAAR cases are usually fact
driven.
1
The Queen v. Canada Trustco Mortgage Co., 2005 SCC 54.
2
Mathew v. The Queen, 2005 SCC 55.
3
Lipson et al. v. The Queen, 2009 SCC 1.
40 | GAAR rising
Contacts:
Canada
Gary Zed
gary.zed@ca.ey.com
+1 403 206 5052
Greg Boehmer
greg.c.boehmer@ca.ey.com
+1 416 943 3463
Please provide a summary of key judicial • Lipson (2009 SCC 1): an arrangement Are there any legislative proposals or open
decisions involving the GAAR or other anti- whereby the taxpayer restructured his consultations that may affect the future
abuse legislation. financial affairs to obtain an interest composition of the GAAR?
The key judicial decisions involving the deduction in respect of borrowed funds No.
GAAR are the Supreme Court of Canada used indirectly to purchase a personal
decisions in: residence. The Court concluded GAAR
applied as to allow the combining
• Canada Trustco Mortgage Company of these provisions to reduce the
(2005 SCC 54): a tax deferral taxpayer’s income tax from what it
arrangement involving the claiming of would have been without the transfer to
substantial capital cost allowance (tax his wife would frustrate the purpose of
depreciation) following a sale-leaseback the attribution rules.
transaction. The Court concluded
GAAR did not apply on the basis the • Copthorne Holdings Ltd. (2011 SCC
transaction fell within the spirit and 63): a surplus stripping arrangement
purpose of the capital cost allowance that involved the doubling-up of paid-up
provisions of the Income Tax Act. capital. The Court concluded GAAR
applied as the object and spirit of the
• Kaulius/Mathew (2005 SCC 55): an paid-up capital provisions of the Act
arrangement involving the acquisition preclude the preservation of paid-up
of losses whereby the company capital where the preservation would
transferred unrealized losses to arm’s- allow for a tax-free withdrawal of an
length taxpayers through series of amount in excess of the investment
transactions involving partnerships. made by shareholders with tax-paid
The Court concluded GAAR applied as funds.
Parliament could not have intended that
the combined effect of the partnership
rules and s. 18(13) would preserve
and transfer a loss to be realized by a
taxpayer who deals at arm’s length with
the transferor.
42 | GAAR rising
Contacts:
China
Becky Lai
becky.lai@hk.ey.com
+86 10 5815 2830
Henry Chan
henry.chan@cn.ey.com
+86 10 5815 3397
What is the administrative or audit process Can the GAAR override treaties when daily basis from 1 June following the
for invoking the GAAR? invoked? tax year to which the tax is attributed
In order to launch a general anti-tax According to Article 58 of the CIT Law, through the date of tax payment.
avoidance investigation, the in-charge tax where agreements on taxation concluded Interest shall be charged at a rate of 5%
authority would need to issue a Notice of by China and foreign governments above the benchmark lending interest
General Anti-tax Avoidance Investigation contain different provisions, and is rate published by the People’s Bank
to the taxpayer; within 60 days of receipt inconsistent with domestic provisions, of China for the year in which the tax
of such Notice, the taxpayer should such agreements shall prevail. payment occurs per Article 122 of the
provide documents to prove that the Implementation Rules of the CIT Law.
Therefore, technically speaking, the
arrangement in question is entered into GAAR should not override a treaty if
for reasonable commercial purposes. Please provide a summary of key judicial
there is no abuse of the treaty. With decisions involving the GAAR or other anti-
If the company fails to provide the this said, we have seen several cases abuse legislation.
documents within the specified period where the GAAR provision is invoked
or the documents provided cannot prove and overridden treaties, but those were Tax court cases are very rare in China.
that the arrangement is entered into generally very special transactions We have seen several Circular 698
for reasonable commercial purposes, or extreme cases that involve serious cases being widely published on tax
the taxation authority may, on the basis abusive acts or arrangements with a authorities’ websites or reported in the
of information acquired by it, make tax primary objective to avoid, defer or news. However, these cases do not carry
adjustments via the issuance of a Notice reduce tax. In other words, the tax the same meaning as tax court cases
of Special Tax Investigation Adjustments. authorities would invoke the GAAR on do in other case law countries. These
transactions entered into with a view cases, which detail how the SAT have
Per Article 97 of Circular 2, general successfully enforced or collected taxes
toward obtaining unintended benefits
anti-tax avoidance investigations and from taxpayers, are published for use as
under the treaty.
adjustments shall be reported level by learning materials.
level to the SAT for approval. In addition, various tax treaties recently
entered into by China also contain Are there any legislative proposals or open
What is the general attitude of the tax specific articles stating that the treaty consultations that may affect the future
authority toward invoking the GAAR? shall not prejudice the right of each composition of the GAAR?
Based on our observations, the SAT tends contracting party to apply its domestic
China’s tax authorities, including the SAT,
to have an aggressive interpretation of laws and measures concerning tax
are open to listening to the experience of
the GAAR provision. They tend to focus avoidance insofar as they do not give rise
tax practitioners, as well as any concerns
more on operating substance (e.g., to taxation contrary to the treaty.
or difficulties their clients, i.e., taxpayers,
number of employees, office space) may have regarding the GAAR provision.
instead of reasonable commercial What penalties may result from the GAAR We do not believe the existing GAAR
being invoked?
purpose when deciding whether to invoke provision would change in any significant
the GAAR. The SAT may impose interest on the way. However, the implementation of
tax underpaid (if any) when the GAAR the GAAR provision may change based
Is a ruling or clearance mechanism provision is invoked and tax adjustment on comments or feedback received from
available? is made. The media have reported that taxpayers and practitioners.
There is no clearance mechanism an interest charge has been levied in one
case. The SAT is drafting new detailed
available under the prevailing tax laws for implementation rules for the GAAR,
the GAAR or generally for taxes in China. Article 48 of the CIT Law stipulates that
projected to be released during
when adjustments are made to taxable
amounts under Chapter 6 of the CIT late 2012.
Does your country have a GAAR Panel?
If yes, do taxpayers carry out strategic Law (including GAAR adjustments),
decision-making as to whether they appear interests would be levied. In such a
before the Panel or not? situation, Articles 121 and 122 of the
China does not currently have a Implementation Rules of the CIT Law
GAAR Panel, but the formulation of state that, in case the tax authority
such a Panel is under active debate. makes a special adjustment for
For substantial GAAR cases, the enterprises pursuant to the provisions
administration requires a consensus of the CIT Law and regulations, the tax
group determination based on an internal authority shall impose interest charges
control guideline. for the unpaid tax computed on a
44 | GAAR rising
Contact:
France
Charles Menard
charles.menard@ey-avocats.com
+33 1 55 61 15 57
• Transfer of assets abroad: the • CFC rules: under section 123-bis of • Obligation to disclose accounts
provisions of section 238-bis-0 I of the Book of Tax Procedures, when opened, used or closed abroad: section
the Book of Tax Procedures apply to an individual having his tax domicile 1649 A of the Book of Tax Procedures.
transfer of assets to a grouping or in France holds directly or indirectly
• Obligation to disclose a life insurance
a fiduciary arrangement (such as a at least 10% of the financial rights or
policy contracted with entities located
trust) established abroad. Under this voting rights in a corporate entity, a
abroad: section 1649 AA of the FTC.
provision, annual profits derived from grouping or a fiduciary arrangement
this corporate entity, grouping or (such as a trust) established or created • The 3% real estate tax: under section
fiduciary arrangement are included in abroad and subject to a privileged tax 990 D of the Book of Tax Procedures,
its French taxable income. regime, the profits derived from this legal entities that directly or indirectly
corporate entity, grouping or fiduciary own one or more real property assets
• Limitation of the deduction of
arrangement are treated as a deemed in France or rights over such assets are
interests: the Amended Finance Bill for
distribution, taxable as such up to the liable to an annual tax assessed at the
2011 created an anti-abuse mechanism
level of interest or participation held by rate of 3% on the fair market value (as
(under section 209 IX of the FTC) that
the taxpayer in the entity. at 1 January of each year) of such real
aims to limit the deduction of interest
property assets or rights unless they fall
related to the acquisition of qualifying • Restrictions of deduction payments
outside the scope of this tax or benefit
participations (i.e., shares considered to to tax havens entities: under section
from an exemption.
be “titres de participation” — a specific 238 A of the Book of Tax Procedures,
class of shares for accounting purposes the deduction of interests, royalties, • Exit tax: under section 167-bis of
that enables the shareholder to have a remuneration for services and other the Book of Tax Procedures, as from
controlling interest, or shares that are amounts paid by a person domiciled 3 March 2011, taxpayers who become
eligible for the dividend participation in France to a person domiciled resident in another country and who
exemption regime). According to the or established in a country with a hold substantial shareholdings (i.e., a
new rules, as from 1 January 2012, privileged tax status is prohibited shareholding exceeding 1% of the share
the interest related to the acquisition unless the taxpayer proves that capital of a company, or a shareholding
of qualifying participation is not tax (i) the transaction is genuine and with a value that exceeds €1.3 million)
deductible if the company does not (ii) the payment is not excessive or must upon departure pay income tax
show that (i) it effectively makes unreasonable. and social contributions (exit tax) on
the decisions concerning these the unrealized capital gains. Also, in
• Undisclosed transfers of funds from
investments, and (ii) if applicable, it has situations where shareholdings of less
and to third countries: pursuant
an effective control or influence over than 1% exist in multiple companies and
to section 1649-quater A of the
the acquired company. the total value of those shareholdings
Book of tax procedures, transfers of
exceeds €1.3 million, the exit tax is
funds by French resident individuals
due. The tax paid is credited against
France also has anti-abuse measures without the intermediary of a financial
the capital gains tax effectively payable
aimed at fighting tax evasion by institution can be made from or to EU
at the time the shares are actually
individuals: Member States on the condition that
disposed of, with the excess being
individuals make disclosure to the
• Payments to entity established abroad refunded. The exit tax is refunded
Customs Authorities when the amount
in consideration for services: under after eight years from the date it was
of the transfer exceeds €10,000. If
section 155 A of the Book of Tax collected if the shares have not been
they do not undertake this formality,
Procedures, amounts paid to a person disposed of or if the taxpayer becomes
this transfer is considered as taxable
domiciled or an entity established resident in France before that date. The
income, unless the taxpayers prove that
abroad in consideration for services social contributions are not refundable.
income has already been taxed or was
rendered by a person domiciled or The exit tax is not levied if the taxpayer
not taxable in France. Failure to comply
established in France are taxable in becomes a resident of another EU
with this formality implies a penalty
France if (i) the person domiciled in Member State.
of €1,500 (i.e., €10,000 when the
France directly or indirectly controls the account is located in a NCST.
foreign person or entity which receives
the payment, or (ii) the supplier does
not prove that the foreign person or
entity principally carries on an industrial
or commercial business other than the
performance of services, or (iii) the
foreign person or entity is established in
a country with a privileged tax regime.
46 | GAAR rising
Contact:
France
Charles Menard
charles.menard@ey-avocats.com
+33 1 55 61 15 57
Can the GAAR override treaties when Please provide a summary of key judicial Key judicial decisions involving other anti-
invoked? decisions involving the GAAR or other anti- abuse legislation:
abuse legislation.
Yes, it could (for example, see case CE, • CE, 30 December 2003, n° 249047,
29 December 2006, n°283314, Min c/ Key judicial decisions involving the GAAR: SARL Coréal Gestion c/ Min and,
Société Bank of Scotland). • CE, 27 September 2006, n°260050, n° 233894, SA Andritz c/ Min.
Sté Janfin. • CE, 10 November 2004, n° 211341, M.
What penalties may result from the GAAR
being invoked? • CE, 29 December 2006, n°283314, de Lasteyrie du Saillant c/ Min (CJCE,
Min c/ Sté Bank of Scotland. 11 March 2004, aff. 9/02): Exit tax.
If the FTA successfully demonstrate that
the abuse of law procedure may apply, • CE, 18 February 2004, n°247729, SA • Cass.com, 8 April 2008, n°02-10.359,
such reassessments trigger, in addition Pléiade: the Administrative Supreme Elisa (CJCE, 11 October 2007, aff.
to the late payment interest, an 80% Court dealt with the application of the C451/05): 3% real estate tax.
penalty, which may be reduced to 40% GAAR in respect of a Luxembourg 1929 • CE, 28 March 2008, n°271366,
if the FTA cannot demonstrate that the holding company by a French resident Aznavour: section 155 A of the Book of
taxpayer was either the main initiator of company. Tax Procedures.
the transactions constituting the abuse • CE, 18 May 2005, n°267087, Sté
of law or the main beneficiary of the Sagal: the GAAR was challenged by a Are there any legislative proposals or open
transactions. taxpayer in respect of its compatibility consultations that may affect the future
with EU law (i.e., the freedom of composition of the GAAR?
establishment). No. However, some adjustments to other
• CE, 10 December 2008, n°295977, specific measures, such as deduction
Sté Andros et Cie. of interest and burden of proof reversal
for transfer pricing matters, are under
• CE, 27 July 2009, n°295358, Caisse scrutiny within the scope of the second
interfédérale du Crédit Mutuel and amended Finance Bill for 2012 (due to
n°295805, Sté Conforama Holding. the change of majority after France’s
• CE, 27 January 2011, n°320312, elections).
Bourdon: the GAAR does not prevent
the taxpayer from using LBO structures
to alleviate the tax liability as long as a
minimum dose of economic substance
exists.
48 | GAAR rising
Contacts:
Germany
Ute Witt
ute.witt@de.ey.com
+49 3025 471 21660
Jürgen Schimmele
juergen.schimmele@de.ey.com
+49 211 9352 21937
Substance test (only for passive income) Is the onus on the taxpayer or the taxing What penalties may result from the GAAR
authority to provide the burden of proof? being invoked?
The required substance is indicated in
case of: There is a partial sharing of the burden Penalties may only result from GAAR
of proof. The authorities have to prove when the taxpayer gives incorrect
• Existence of sufficient management and malpractice, but the taxpayer has to information to the tax authorities (tax
other staff personnel invalidate the charge. fraud/tax evasion).
• The personnel having sufficient
qualifications to engage in the business What is the administrative or audit process Please provide a summary of key judicial
of the company in a competent and for invoking the GAAR? decisions involving the GAAR or other anti-
independent manner abuse legislation.
Typically, the tax authorities discover
• Transactions between related parties malpractice during a tax audit. As a BFH, Urteil vom 13.10.2010, I R 61/09,
based on the arm’s-length principle consequence, the tax assessment will be BStBl. II 2011, 249 — “Dublin Docks”
revised. BFH, Urteil vom 15.12.1999,
Substance that exists at the level of other
group companies cannot be taken into I R 29/97, BStBl. II 2000, 527 —
account. What is the general attitude of the tax “Dividendenstripping,” confirmed by
authority toward invoking the GAAR? decision of 20.11.2007, I R 85/05, BFH/
Timing aspects NV 2009, 289.
The general attitude of the tax authority
• For an application for refund, the tests is regulated in the Circular on Application
outlined before have to be performed of the German Fiscal Code to sec. 42 AO Are there any legislative proposals or open
for the year the respective dividends, (Anwendungserlass zur AO, AEAO). consultations that may affect the future
etc., were received by the respective composition of the GAAR?
interposed company. Is a ruling or clearance mechanism There are no pending legislative
• For an application for a tax exemption available? proposals or consultations that may
certificate, the tests outlined before Yes, there is the possibility of a clearance affect the GAAR.
have to be performed for the year mechanism. The taxpayer can check In 2012, the green party (opposition
of the application. Certain changes the proposed transaction by requesting party in Parliament) failed in an attempt
in future circumstances have to be an advance ruling from the German tax to tighten the GAAR.
reported to the tax authorities. authority. The decision binds the tax
Apportionment rule authority. Can GAAR be applied to a transaction in
spite of an existing specific anti-abuse
On the basis of the tests to be performed Does your country have a GAAR Panel? rule?
(shareholder test, business income test, If yes, do taxpayers carry out strategic
business reason test and substance Basically, yes. But when the matter of
decision-making as to whether they appear
test), the company will be entitled to before the Panel or not? facts [Tatbestand] of a specific anti-
full or partial withholding tax relief abuse rule are fulfilled, sec. 42 AO is not
No. applicable. Sec. 42 AO is a blanket clause
(apportionment rule).
[Generalklausel]. If there is a specific
Can the GAAR override treaties when anti-abuse rule for the transaction, but
What are the circumstances in which the invoked?
GAAR can be invoked? the matter of facts are not fulfilled, sec.
Yes. Although some treaties include a 42 AO is not applicable either.
An inadequate arrangement leads to a special anti-avoidance rule that was in
tax benefit the law does not provide for. effect prior to the GAAR (sec. 42 AO)
and the German special anti-avoidance
rules. However, the German Federal
Fiscal Court (Bundesfinanzhof, BFH) still
applies sec. 42 AO.
• Where an FII chooses to take DTAA The Committee has also fully
Does your country have specific legislation incorporated the recommendations
benefit, GAAR provisions may be in place related to the indirect transfer of
invoked in the case of the FII, but they assets?
made by the Parliamentary Standing
would not be invoked in the case of the Committee on Finance to clarify
Yes, it has been inserted by Finance Act “substantial value” as 50% or more value
nonresident investors of the FII. 2012, with retrospective effect from derived from assets located in India
1 April 1962. This measure is currently and carve-out exceptions for internal
Can the GAAR be applied retrospectively? under review by the Indian Government. reorganizations.
The provisions of the GAAR will apply The Expert Committee on GAAR chaired
to any arrangement entered into by the by Dr. Parthasarathi Shome has issued What are the circumstances in which the
taxpayers on or after 1 April 2016. its second report which makes a series GAAR can be invoked?
of recommendations in relation to the A GAAR may be invoked (as proposed)
Do specific anti-abuse measures exist? If Indian Government’s proposal for a if the following three conditions are
yes, please describe the measures and the 50-year retroactive measure in relation satisfied:
issues they focus on. to the taxation of indirect transfers of
assets. 1. The taxpayer has entered into an
Specific anti-abuse measures include: arrangement, which includes a
• Deeming certain payments by closely The Committee recommends that transaction, operation, scheme,
held companies by way of loans and retrospective application of tax laws agreement or understanding as well as
advances to specified shareholders and should occur only in exceptional or a step or part of these.
other specified entities as dividends rarest of rare cases and with particular
objectives, namely, first to correct 2. The main purpose of the arrangement
• Value of any benefit or perquisite, apparent mistakes or anomalies in the is to obtain a tax benefit (this will
whether convertible in money or not, statute, second to remove technical be presumed to be the case if the
arising from that business or profession procedural defects that have vitiated arrangement “results” in a tax benefit,
to be taxed as income from business or the substantive laws and third to unless the taxpayer proves otherwise).
profession protect the tax base from highly abusive 3. The arrangement either:
• Disallowance of excessive and tax avoidance schemes. However,
retrospective application of tax laws • Creates rights and obligations that
unreasonable payments to an are not normally created between
associated person should never be used to expand the tax
base as is the case in respect of taxation persons dealing at arm’s length
of indirect transfers.
50 | GAAR rising
Contacts:
India
Ganesh Raj
ganesh.raj@in.ey.com
+91 12 0671 7110
Rajan Vora
rajan.vora@in.ey.com
+91 22 6192 0440
• Results in misuse or abuse of the Is the onus on the taxpayer or the taxing Can the GAAR override treaties when
provisions of the Act authority to provide the burden of proof? invoked?
• Lacks commercial substance or The primary onus is on the tax authority The newly introduced provisions explicitly
is deemed to lack commercial to provide the burden of proof. state that the provisions of a DTAA would
substance not be available to a taxpayer when the
What is the process for invoking the GAAR? GAAR is invoked.
• Is carried out in a manner not
normally employed for bona fide 1. The Lower Tax Authority refers to
purposes What penalties may result from the GAAR
the Higher Tax Authority if during
being invoked?
A monetary threshold of Rs. 3 core of assessment or reassessment it is
considered necessary to invoke the In situations where a GAAR is invoked (as
tax benefit (about US$550,000) in the
GAAR based on evidence or material. proposed), the income tax authorities
arrangement will be provided in order to
will be empowered to declare such
attract the provisions of GAAR. 2. The Higher Tax Authority hears the
arrangement as an IAA and to determine
taxpayer. The assessing officer will be
the appropriate tax consequences,
Does your country have a GAAR Panel? required to issue a show cause notice,
including by:
If yes, do taxpayers carry out strategic containing reasons, to the assessee
decision-making as to whether they appear before invoking the provisions. • Disregarding, combining or
before the Panel or not? recharacterizing any step or part or
3. If the Higher Tax Authority is of the
The Approving Panel shall consist of whole of the arrangement
opinion that GAAR provisions are to be
a Chairperson who is or has been a invoked, the matter will be referred to • Treating the arrangement as if it had
Judge of a High Court; one Member Approving Panel. not been entered into or carried out
of the Indian Revenue Service not
4. The Approving Panel will determine • Disregarding any party to the
below the rank of Chief Commissioner
consequences of IAA, including years arrangement
of Income-tax; and one Member who
shall be an academic or scholar having affected. • Reallocating income and expenses
special knowledge of matters such as 5. After inquiries and further reports, between the parties to the arrangement
direct taxes, business accounts and the Approving Panel will decide if the • Relocating the place of residence of a
international trade practices. The arrangement is an IAA. The order is to party, or the location of a transaction or
current provision that the Approving be given within six months of Higher situs of an asset, to a place other than
Panel shall consist of not less than three Tax Authority reference. provided in the arrangement
members being Income-tax authorities
or officers of the Indian Legal Service • Looking through the arrangement by
What is the general attitude of the tax
will be substituted. The Approving Panel authority toward invoking the GAAR? disregarding any corporate structure
may have regard to the period or time • Recharacterizing equity into debt,
for which the arrangement had existed; Although the GAAR has yet to be
implemented, it will have a far-reaching capital into revenue and vice versa
the fact of payment of taxes by the
assessee; and the fact that an exit route impact and would affect every taxpayer A penalty of 100% to 300% of the tax
was provided by the arrangement. Such including investors, multinationals and amount will apply.
factors may be relevant but not sufficient Indian business houses.
to determine whether the arrangement Its implications need to be considered, Please provide a summary of key judicial
is an impermissible avoidance particularly for all structuring and decisions involving the GAAR or other anti-
arrangement. transactions being undertaken, as well abuse legislation.
The directions issued by the Approving as in respect of existing arrangements, Not applicable.
Panel shall be binding on the assessee as structures and business models.
well as the Income-tax authorities. The Are there any legislative proposals or open
current provision that it shall be binding Is a clearance or ruling mechanism consultations that may affect the future
only on the Income-tax authorities will be available for the GAAR? composition of a GAAR?
modified accordingly. • A resident or a nonresident can file The Committee on GAAR recently
Since the GAAR is newly introduced an application to AAR to determine circulated for public comment draft
and its implementation will be from whether the arrangement proposed to guidelines regarding the implementation
1 April 2013, whether the taxpayers be undertaken by them would fall under of the GAAR provisions.
carry out strategic decision-making or the purview of an IAA as per the GAAR
appear before the Panel has yet to be provisions.
determined. • The final order of the tax officer is
appealable directly to the Tribunal, the
second level of appellate authority in
India. It consists of two senior judges
called Tribunal members.
Mapping tax enforcement’s evolution | 51
Indonesia
Does a GAAR exist? If so, please state year Do specific anti-abuse measures exist? If Does your country have specific legislation
of introduction and date of applicability. yes, please describe the measures and the in place related to the indirect transfer of
issues they focus on. assets?
No.
Indonesia has several specific income tax Yes; see prior question. However, this
On what class of taxpayer is the GAAR provisions that are intended to avoid tax should be limited to a conduit company
typically invoked? Is it more likely to be abuse: or special purpose vehicle established in
applied at the corporate level as opposed to tax haven countries.
individuals?
• There is an anti-abuse rule on the
application of tax treaty benefits
The specific anti-avoidance rules listed (effective since 1 January 2010). What are the circumstances in which the
below apply to any class of taxpayer; in GAAR can be invoked?
practice, it is more likely to be applied to • The sale of shares in a conduit company
There are no specific circumstances
those at the corporate level. or special purpose vehicle established
except as mentioned above.
or domiciled in a tax haven country
that has a special relationship with
Can the GAAR be applied retrospectively? Is the onus on the taxpayer or the taxing
a company established or domiciled
authority to provide the burden of proof?
No. However, the tax office may take the in Indonesia or with permanent
view that the income tax law is essentially establishment in Indonesia is deemed The burden of proof is generally shared.
based on the principle of substance over to be the seller of the shares in the In the general tax audit procedures, the
form rule to avoid tax abuse. company established or domiciled in tax authority is required to base its tax
Indonesia or the sale of the permanent adjustments on valid and sound ground.
establishment in Indonesia (effective However, in tax court practices, both
since tax year 2009). taxpayers and tax authorities should
provide their own evidence to defend
A taxpayer who purchases shares or
their respective positions.
assets of a company through another
party or entity that is formed specifically
for this purpose can be deemed to the
actual buyer (effective since tax year
2009).
52 | GAAR rising
Contacts:
Indonesia
Rachmanto Surahmat
rachmanto.surahmat@id.ey.com
+62 21 5289 5587
Dodi Suryadarma
dodi.suryadarma@id.ey.com
+62 21 5289 5236
What is the process for invoking the GAAR? What is the administrative or audit process What penalties may result from the GAAR
for invoking a GAAR? being invoked?
In general, tax assessments are issued
as a result of a tax audit or the tax office There are two types of tax audits in There are no specific penalties for GAAR.
obtaining solid evidence for the issuance Indonesia: field audit and office audit. The general penalty rules apply. For
of a tax assessment. If the tax office A field audit allows the tax office to enter instance, short payment of income tax is
considers that there is sufficient grounds, the premises of the taxpayers and obtain subject to an interest penalty of 2% per
they can carry out a special investigation, any documents deemed necessary. An month with a maximum of 48%.
which can result in the case being office audit is a simpler process where
brought to the criminal court. the tax audit is carried out at the tax Please provide a summary of key judicial
office’s premises. In both types of tax decisions involving the GAAR or other anti-
audit, the tax authorities can invoke one abuse legislation.
Does your country have a GAAR Panel?
If yes, do taxpayers carry out strategic of the specific anti-avoidance rules. Not applicable.
decision-making as to whether they appear
before the Panel or not? Can the GAAR override treaties when Are there any legislative proposals or open
No. invoked? consultations that may affect the future
No. Tax treaties should override the composition of the GAAR?
What is the general attitude of the tax domestic tax laws. No.
authority toward invoking a GAAR?
The attitude is quite aggressive,
especially on the application of tax
treaty benefits and the indirect sale of
Indonesian shares.
54 | GAAR rising
Contact:
Ireland
David Smyth
david.smyth@ie.ey.com
+353 1 2212 439
Does your country have a GAAR Panel? What penalties may result from the GAAR Please provide a summary of key judicial
If yes, do taxpayers carry out strategic being invoked? decisions involving the GAAR or other anti-
decision-making as to whether they appear abuse legislation.
before the Panel or not? Where the opinion of the Revenue
Commissioners that a transaction is Key judicial decisions
No. a tax avoidance transaction becomes In December 2011, the Irish Supreme
final, interest and a 20% surcharge will Court delivered its first decision in
What is the general attitude of the tax be payable on the tax that the taxpayer
authority toward invoking the GAAR?
relation to Ireland’s GAAR (Revenue
unsuccessfully attempted to avoid Commissioners v O’Flynn Construction
Section 811 is perceived to have had paying. Co. Ltd). The decision upheld the earlier
mixed results since its introduction in It is provided that, by making a protective High Court decision that had found in
1989. A number of further initiatives notification to Revenue in respect of a favor of Revenue.
have also been introduced, including transaction within 90 days of beginning
a protective notification process with The case concerned the application of
a transaction, the taxpayer can, on a the GAAR to a transaction designed
reportedly disappointing support. In wholly non-prejudicial basis, obtain
2011, a mandatory reporting regime to obtain the benefit of export sales
protection from the possibility of such relief dividends (since abolished). The
was introduced requiring the mandatory interest or surcharge arising in the event
reporting of certain transactions transaction was implemented through
of Revenue successfully challenging the a series of predefined steps over a two-
(namely transactions with characteristics transaction.
perceived to point to tax avoidance) to month period. The resulting tax benefit
the Revenue Commissioners. An appeal against Revenue’s opinion was challenged by Revenue under the
that a transaction is a tax avoidance GAAR.
Is a clearance or ruling mechanism available
transaction will be deemed to be finally The majority decision of the Supreme
for the GAAR? determined where it is settled by Court decided that the transaction was a
agreement between the taxpayer and tax avoidance transaction and that none
No. Revenue. of the exceptions applied.
Can the GAAR override treaties when
Refunds by a taxpayer of tax repayments
invoked? received as a result of avoidance will be Are there any legislative proposals or open
treated as additional tax payable for the consultations that may affect the future
No. purposes of the surcharge. composition of a GAAR?
56 | GAAR rising
Contact:
Italy
Maria Antonietta Biscozzi
maria-antonietta.biscozzi@it.ey.com
+39 02 8514 312
What is the process for invoking the GAAR? What is the general attitude of the tax Please provide a summary of key judicial
authority toward invoking the GAAR? decisions involving the GAAR or other anti-
Before the tax authorities can issue a abuse legislation.
notice of assessment based upon the Italian tax authorities are now more
anti-avoidance provision, the law requires likely than before to apply Article 37-bis Reference is made only to Supreme
compliance with specific prelitigation or the abuse of law principle. Note that Court decisions:
procedures. The tax office needs to issue when the abuse of law principle is used, • Supreme Court decision n. 30055 of
a preliminary request challenging the the specific procedure mentioned earlier 2008 concerning the abuse of law as
reasons why the operation is deemed to does not apply. general principle deriving from the
be “elusive” and requesting the taxpayer Constitution and therefore always
to offer comments within 60 days of the Is a clearance or ruling mechanism applicable
notification. available for a GAAR?
• Supreme Court decision n. 25537 of
If, for whatever reason, the prelitigation Yes, the taxpayer can request the opinion 2011 concerning the applicability of
procedure is not respected by Italian tax of Italian tax authorities about a specific normal administrative penalties in case
authorities, the tax assessment based operation in advance. of application of Article 37-bis
upon Article 37-bis Presidential Decree
• Supreme Court decision n. 7393 of
n. 600/73 is null and void. In addition, Does your country have a GAAR Panel?
If yes, do taxpayers carry out strategic 2012 concerning the relation between
the motivation expressed in the tax
decision-making as to whether they appear Article 37-bis and the abuse of law
assessment should clearly indicate the
before the Panel or not? principle (the abuse of law always
reasons why the taxpayer’s arguments
No. prevails)
were not considered relevant and
therefore disregarded by the tax office.
Are there any legislative proposals or open
Can the GAAR override treaties when
consultations that may affect the future
invoked?
composition of the GAAR?
In principle, no. There is an active reform project to
modify Article 37-bis by merging the old
What penalties may result from the GAAR anti-avoidance rule with the abuse of law
being invoked?
principle. This has not yet been approved
The normal penalty when a tax return by Parliament.
is considered unfaithful, from 100% to
200% of additional taxes due, applies.
58 | GAAR rising
Contact:
Japan
Koichi Sekiya
koichi.sekiya@jp.ey.com
+81 3 3506 2411
Is the onus on the taxpayer or the taxing Is a clearance or ruling mechanism Please provide a summary of key judicial
authority to provide the burden of proof? available for a GAAR? decisions involving the GAAR or other anti-
abuse legislation.
The burden of proof is primarily on the No.
tax authority. There is a disallowance of taking foreign
Does your country have a GAAR Panel? tax credits, which was regarded as an
What is the administrative or audit process If yes, do taxpayers carry out strategic abuse.
for invoking the GAAR? decision-making as to whether they appear
before the Panel or not? Are there any legislative proposals or open
It is the same as the normal tax
No. consultations that may affect the future
examination process. composition of the GAAR?
Can the GAAR override treaties when There is currently an active debate in
What is the general attitude of the tax
authority toward invoking the GAAR? invoked? Japan regarding the introduction of a
Not applicable. comprehensive GAAR to Japanese tax
To date, the tax authority has law.
demonstrated no specific attitude in their
application of anti-abuse provisions. What penalties may result from the GAAR
being invoked?
Recently there have been some cases
where the tax authorities challenge Not applicable.
the tax benefit of transactions and
arrangements by taxpayers because
they believe that such transactions do
not have any commercial substance or
consideration other than to generate
a tax benefit. In such cases, the tax
authorities may apply Article 132, 132-2,
or 132-3 of the CTL to the relevant cross-
border transaction(s) or reorganization
arrangements that are executed by
corporate taxpayers.
60 | GAAR rising
Contacts:
Mexico
Jorge Libreros
jorge.libreros@mx.ey.com
+52 55 5283 1439
Manuel Solano
manuel.solano@mx.ey.com
+52 55 1101 6437
Does your country have specific legislation What are the circumstances in which the Can the GAAR override treaties when
in place related to the indirect transfer of GAAR can be invoked? invoked?
assets?
Not applicable. No. In terms of a Supreme Court
As a general rule, MITL provisions precedent, international treaties are
establish that when transferring shares, Is the onus on the taxpayer or the taxing hierarchically higher than federal
income shall be deemed to have Mexican authority to provide the burden of proof? legislation.
source when more than 50% of such
The burden of proof is on the Mexican The Mexican Federal Tax Code
shares’ “book value” comes directly or
tax authority. However, tax authorities establishes that the tax laws apply
indirectly from real estate located in
may base their case on presumptions without prejudice to the provisions of
Mexico. Different interpretations exist
regarding simulation. international treaties.
on how to determine the value of the
immovable property in relation to the
book value of the shares, but the most What is the administrative or audit process What penalties may result from the GAAR
for invoking the GAAR? being invoked?
common is to consider the value shown
on the financial statements. Certain In general, tax authorities must exercise There are no qualified penalties. In
exceptions may exist if the taxpayer is a their review and enforcement powers in a general, there could be a penalty of 55%
resident of a country that entered into a formal procedure to invoke an anti-abuse of the unpaid taxes as determined by the
tax treaty with Mexico. rule. tax authorities as a result of the exercise
of their review and enforcement powers.
Net operating losses and change
of ownership: if there is a change in What is the general attitude of the tax
authority toward invoking the GAAR? Please provide a summary of key judicial
controlling partners or shareholders of a
decisions involving the GAAR or other anti-
company that has tax losses available for The Mexican tax authority has not abuse legislation.
carryforward, and the sum of the income demonstrated any particular attitude in
in the three prior tax years is less than invoking anti-abuse measures. The Mexican Supreme Court ruled (in
the amount of the tax losses adjusted for a non-binding precedent) that those
inflation, the tax losses may be used only Does your country have a GAAR Panel? transactions carried out by taxpayers
to offset income from the same business If yes, do taxpayers carry out strategic that are not legally prohibited have the
activity that generated the losses. For decision-making as to whether they appear presumption of legality, to the extent
this purpose, income is measured based before the Panel or not? that they are not done outside normal
on the income included in the financial No. commercial practice.
statements of the company. Therefore, when it is alleged that a
A change in controlling partner or Is a clearance or ruling mechanism particular transaction has a speculative
shareholder is deemed to occur when available for a GAAR? purpose intended solely for tax
there is a change of holders, directly In general, taxpayers can request a avoidance, the party proposing such an
or indirectly, of more than 50% of the ruling to confirm the applicable tax argument must provide the information
company’s shares or social parts with regime of a transaction (the transaction indicating the absence of legal substance.
voting rights, in one or more acts over a must be real and concrete). In addition,
period of three years. Certain exceptions a transfer pricing methodology ruling Are there any legislative proposals or open
apply in the case or mergers, spin-offs or may be requested. Regarding the thin consultations that may affect the future
reorganizations. composition of the GAAR?
capitalization 3-to-1 ratio, a ruling may
be requested in order to be authorized to No.
apply a higher leverage.
62 | GAAR rising
Contact:
Netherlands
Arjo van Eijsden
arjo.van.eijsden@nl.ey.com
+31 88 407 8411
What are the circumstances in which the Is a clearance or ruling mechanism In theory, when the tax authorities
GAAR can be invoked? available for a GAAR? apply Dutch GAAR, they are entitled
GAAR can be invoked if a taxpayer A clearance mechanism is available. to impose an administrative penalty.
entered into a transaction that was (i) A taxpayer can check the potential However, in order to be able to impose
contrary to the purpose of Dutch tax tax consequences of a contemplated an administrative penalty, the tax
legislation and (ii) with the predominant transaction with the tax authorities. inspector has to prove gross negligence
aim of avoiding taxation. Commitments made by the tax inspector or the intention of the taxpayer to avoid
will be binding for the tax authorities taxation. No such gross negligence
Is the onus on the taxpayer or the taxing (unless evidently contrary to tax or intention will be deemed to have
authority to provide the burden of proof? legislation). occurred if the taxpayer has a defensible
point of view regarding his or her tax
The onus of proof is on the tax inspector position. In situations where fraus legis is
claiming applicability of the GAAR. Does your country have a GAAR Panel?
If yes, do taxpayers carry out strategic applicable, the taxpayer generally has a
decision-making as to whether they appear defensible point of view regarding his tax
What is the administrative or audit process before the Panel or not? position. This point of view is overruled
for invoking a GAAR? by fraus legis in order to establish the
No.
Typically, the tax inspector discovers right taxable amount, but nevertheless
a transaction meeting the previously still stands when assessing if an
mentioned conditions. If so, the tax Can the GAAR override treaties when administrative penalty is in place. For
invoked? this reason, administrative penalties are
inspector corrects the tax return filed by
the taxpayer (generally by imposing an No. Please note that in the absence of unlikely to be imposed next to fraus legis.
additional tax assessment). There are no provisions in treaties or notes to treaties
specific GAAR formalities. that explicitly demonstrate the treaty Please provide a summary of key judicial
partners have agreed to provide for the decisions involving the GAAR or other anti-
What is the general attitude of the tax possibility for the Dutch tax authorities abuse legislation.
authority toward invoking a GAAR? to “disregard” the treaty on the basis of In previous decades, the GAAR was
Consensus is that GAAR is an ultimum a domestic GAAR doctrine, the Dutch applied in several different situations.
remedium. It can be invoked only if Supreme Court has to date refused Most noticeable are situations where
other methods of finding law (such as application of the domestic GAAR taxpayers tried to erode to corporate
interpretation of a legal provision or doctrine in treaty contexts. income tax base by creating (allegedly
the facts) do not provide the necessary deductible) interest payments.
means to reach a reasonable outcome. What penalties may result from the GAAR
being invoked?
There are no signs that the tax Are there any legislative proposals or open
authorities are frivolous in using GAAR If GAAR is applicable, the amount of consultations that may affect the future
against taxpayers. tax due by the taxpayer will increase composition of the GAAR?
compared to the original tax return No.
filed by the taxpayer. Taxation will not
be based on the facts presented by the
taxpayer. Instead, these facts will be
substituted (for tax purposes only) by
facts that are within the reach of the
legal provision that the taxpayer was
trying to avoid.
64 | GAAR rising
Contacts:
Poland
Roman Namyslowski
roman.namyslowski@pl.ey.com
+48 22 557 7304
Agnieszka Talasiewicz
agnieszka.talasiewicz@pl.ey.com
+48 22 557 7280
What is the general attitude of the tax Please provide a summary of key judicial • Judgment of the Supreme
authority toward invoking a GAAR? decisions involving the GAAR or other anti- Administrative Court of
abuse legislation. 18 November 2009 (ref. no. I FSK
Not applicable. In certain cases,
particularly related to the VAT, the Judicial decisions in Poland are binding 1133/08). According to the Article 58,
tax authorities try to build their only in a given matter decided by the paragraph 1, of the Civil Code, a legal
argumentation based on the GAAR. court. Past judicial decisions are relevant action contrary to law or designed to
This attitude is more typical of the tax only while being used for strengthening evade the law is invalid. Considering
inspection authorities rather than regular the argumentation in another court case. the above, the court stated that the
tax authorities. tax authority has the right to assess,
Exemplary key judicial decisions involving
for tax purposes, whether the act
anti-abuse legislation in Poland are:
Is a clearance or ruling mechanism available is valid in light of Article 58 and,
for a GAAR? • Judgment of the Regional consequently, effective. Following
Administrative Court in Wroclaw the court’s sentence, civil contracts,
Individual tax rulings are in place. They of 21 April 2005 (ref. no. I SA/Wr forming mutual rights and obligations
are not specifically designed to exclude 3065/03). According to the court’s of the parties, cannot be used to avoid
applicability of GAAR. However, if all sentence, reducing the burden of the tax law that belongs to the sphere
circumstances are disclosed to the tax taxation can occur in a legal manner, of public law.
authorities in the ruling application, using the components of the specific
the taxpayer is offered a protection tax (e.g., allowances, tax exemptions, Are there any legislative proposals or open
against penalty interest and individual deductions). This action of the consultations that may affect the future
responsibility to the extent he or she taxpayer is called tax avoidance and is composition of the GAAR?
follows the ruling. For events carried considered as acting by legal means,
out after the issue of a tax ruling, the In 2012, the Ministry of Finance
with the aim to reduce taxation or even commenced work toward the
protection is also to be extended to to avoid it (tax savings).
unpaid tax. introduction of a GAAR. At several
• Judgment of the Regional conferences, tax professors, tax
Administrative Court in Warsaw of authorities and tax professionals
Does your country have a GAAR Panel?
If yes, do taxpayers carry out strategic 21 June 2006 (ref. no. III SA/Wa discussed the legitimacy of reintroducing
decision-making as to whether they appear 488/06). The court stated that after anti-avoidance regulations.
before the Panel or not? 2004 when the Constitutional Tribunal
No. declared the previously existing
GAAR provision unconstitutional, the
tax authorities may not rely on the
Can the GAAR override treaties when
invoked?
anti-abuse clause as a purely judicial
concept with no grounds in legal
Not applicable. provisions.
• Judgment of the Regional
What penalties may result from the GAAR
being invoked?
Administrative Court in Warsaw of
2 February 2012 (ref. no. III SA/
Not applicable. Wa 1971/11). The court stated that
tax authorities are entitled or even
obligated to assess the agreements
concluded between taxpayers and other
acts in civil law, from the perspective
of tax effects resulting from these
agreements and acts. In particular, tax
authorities may examine whether acts
in civil law constitute actions aimed at
full or partial tax avoidance. Acts in civil
law may not be used to evade or avoid
the tax law provisions.
66 | GAAR rising
Contacts:
Russia
Alexandra Lobova
alexandra.lobova@ru.ey.com
+7 495 705 9730
Is the onus on the taxpayer or the taxing What is the general attitude of the tax Please provide a summary of key judicial
authority to provide the burden of proof? authority toward invoking a GAAR? decisions involving the GAAR or other anti-
abuse legislation.
According to the Russian Tax Code, a Not applicable.
person shall be deemed innocent of In November 2011, the Supreme
committing a tax offense until guilt has Is a clearance or ruling mechanism Arbitrate Court (SAC) of the Russian
been proven in accordance with the available for a GAAR? Federation passed a precedent-setting
procedure envisaged by federal law. decision concerning thin capitalization
A clearance mechanism is provided
rules (Russian SAC Resolution of
A person who is called to account shall only as mentioned above regarding
15 November 2011 No. 8654/11 on
not be obliged to prove his innocence of Court Decree No. 53 for unjustified tax
Severny Kuzbass Coal Company’s
committing a tax offense. The obligation benefits.
case). The Russian SAC adopted a
to prove the existence of circumstances position that differed fundamentally
that show that a tax offense has occurred Does your country have a GAAR Panel? from the one that courts had previously
and the person is guilty of committing If yes, do taxpayers carry out strategic
decision-making as to whether they appear
adopted. Non-discrimination articles in
it shall rest with the tax authorities. Any
before the Panel or not? double taxation treaties that had been
insurmountable doubts as to the guilt successfully referred to by taxpayers no
of the person who is called to account No. longer proved reliable protection against
shall be interpreted in that person’s Russia’s thin capitalization rules.
favor. However, in practice taxpayers Can the GAAR override treaties when
have to challenge the tax authorities’ invoked? In the case of Naryanmarneftegaz
appliance of anti-abuse rules through LLC, which was decided in court on
In certain cases the Russian tax 5 August 2011, Lukoil and ConocoPhillips
judicial procedures even if the existence
authorities may challenge application had a strategic agreement based on an
of circumstances is disputable.
of benefits provided by double tax economic partnership. The court carried
treaties with reference to violation of the out an investigation of financial and
What is the administrative or audit process
for invoking a GAAR?
internal provisions of the tax legislation other documents and concluded that
(particularly SAAR) by the taxpayer. the loan given to Naryanmarneftegaz
There are general provisions concerning
LLC was in fact made out by Lukoil and
tax control measures. Tax control refers What penalties may result from the GAAR ConocoPhillips through a “financial
to activities carried out by authorized being invoked? company” called Phillips Petroleum
bodies to check the compliance by
There are general penalties provided by International Investment. The judge
taxpayers, tax agents and levy payers
the Russian Tax Code for commission of said that in this situation the interest
with tax and levy legislation.
a tax offense (besides the additional tax is characterized as a dividend under
Tax control shall be exercised by officials assessment, the taxpayer may have to Russian law, so the loan transactions
of tax authorities within the limits of pay a fine and penalties). were controlled. Therefore thin
their authority by means of carrying capitalization rules should be applied.
There are no fines and penalties
out tax audits, obtaining explanations
particularly specified by GAAR. Therefore
and documents from taxpayers and Are there any legislative proposals or open
general fines and penalties stipulated by
tax agents, checking accounting and consultations that may affect the future
the Russian tax legislation are applied. composition of the GAAR?
reporting data, inspecting premises and
The Russian Tax Code establishes fines
areas used to derive income (profit), No.
for non-payment or incomplete payment
engaging experts as well as translators
of tax at 20% of the unpaid amount of
and by other means provided for by the
tax. Moreover in case the tax authorities
Russian Tax Code. Generally, the tax
are able to prove that the failure
authorities have the right to collect any
was committed deliberately the fine
information from any taxpayer in relation
comprises to 40% of the unpaid amount
to any transaction they are investigating.
of tax.
In addition to the fine assessment, the
tax authorities used to charge penalties
calculated based on the refinance Central
Bank rate and the number of failed days.
68 | GAAR rising
Contacts:
Singapore
Gek Khim Lim
gek-khim.lim@sg.ey.com
+65 6309 8452
Is a clearance or ruling mechanism available Does your country have a GAAR Panel? Please provide a summary of key judicial
for a GAAR? If yes, do taxpayers carry out strategic decisions involving the GAAR or other anti-
decision-making as to whether they appear abuse legislation.
Singapore has an advance ruling system before the Panel or not?
whereby the taxpayer can obtain a So far, there are only three reported
binding tax ruling on how the tax law No. cases involving GAAR.
apply to a proposed arrangement The first case was in 1971 and was
seriously contemplated. However, there What penalties may result from the GAAR
being invoked?
largely decided on evidentiary grounds,
are certain situations where the tax but it was based on the old section 33
authority will not rule, including: Under section 33, the comptroller may that was effective prior to 29 January
• Where it requires the authority to disregard or vary the arrangement and 1988.
determine any question of fact make such adjustments as he or she
considers appropriate, including the The second case concerned stamp duties
• Where it involves an interpretation of computation or recomputation of gains where the court found that there was
foreign law or profits or the imposition of liability no “sound commercial basis” for 53
to tax, so as to counteract any tax separate sale and purchase agreements
• Where the authority is undertaking an
advantage obtained or made obtainable when the true nature of the contract
audit or investigation on the taxpayer
by that person from or under that of sale was for the en bloc sale of the
or a similar arrangement
arrangement. properties (i.e., involving only one
An application can be made for a binding agreement).
tax ruling on the GAAR provided it There is no specific penalty provision in
GAAR. However, it remains to be tested The third case involves a financing
involves a contemplated arrangement
whether the general penalty regime (i.e., arrangement whereby the Singapore
and does not involve a situation where
penalties ranging from 100% to 400% Board of Review found the arrangement
the authority will not rule.
of tax undercharged and/or fine and to be structured in a contrived and
imprisonment depending on whether artificial way in order to enable the
Can the GAAR override treaties when appellant to obtain a tax refund. This
invoked? this involves an incorrect return or tax
evasion) could apply. case is currently under appeal to the
The domestic legislation provides Singapore High Court.
for treaty provisions to override the
domestic law. Moreover, anti-abuse Are there any legislative proposals or open
provisions are now included in the newer consultations that may affect the future
tax treaties that have been negotiated. composition of the GAAR?
We are not aware of any legislative
proposals or open consultations that
could affect the GAAR.
70 | GAAR rising
Contacts:
South Africa
Kabelo Malapela
kabelo.malapela@za.ey.com
+27 11 772 5090
Christel Brits
christel.brits@za.ey.com
+27 11 502 0100
What is the process for invoking the GAAR? Is a clearance or ruling mechanism Please provide a summary of key judicial
available for a GAAR? decisions involving the GAAR or other anti-
The taxpayer is first notified of the abuse legislation.
intention to apply the GAAR. The The advance tax ruling system generally
taxpayer is provided with the opportunity precludes a ruling being obtained on an Although there is substantial case law
to respond before the actual GAAR impermissible avoidance arrangement. on the now-repealed section 103, which
assessment is raised. The GAAR is not a preceded the GAAR, there is no case law
penal section, but where an assessment Can the GAAR override treaties when on the GAAR as such. However, some of
is raised on the grounds that the invoked? the principles underlying section 103 still
transaction is an impermissible avoidance apply, so the relevant case law will still
As a rule, there is no conflict between
arrangement, the commissioner may apply in relation to those principles.
domestic anti-abuse rules and provisions
not waive the interest on the amount of a tax treaty. The GAAR will be applied
payable. Are there any legislative proposals or open
in the same manner for purely domestic consultations that may affect the future
arrangements and arrangements composition of the GAAR?
What is the general attitude of the tax involving an international component.
authority toward invoking the GAAR? Although there are no current open
At this stage it is difficult to gauge the What penalties may result from the GAAR
consultations that we are aware of, the
attitude toward invoking the GAAR being invoked? legislative process is of a consultative
because there has been no case law on nature, and proposals can be made to the
The GAAR is not a penal section. What Treasury or SARS.
the new GAAR. Although it is conceivable has not been considered is whether
that the GAAR had been applied in the new Tax Administration Bill,
practice, what tends to happen is that, which is expected to be enacted in
partly because of the reputational June 2012, may have a penalty impact
issues associated with a GAAR matter on arrangements assessed in terms of
and partly because of the compulsory the GAAR.
interest element, taxpayers tend to
enter into settlement agreements on
arrangements subject to the GAAR. The
general attitude of the South African
Revenue Service (SARS) is that the GAAR
should serve as an effective deterrent
for entering into aggressive tax planning
arrangements.
72 | GAAR rising
Contacts:
South Korea
Jong Yeol Park
jong-yeol.park@kr.ey.com
+82 2 3770 0904
What is the administrative or audit process Can the GAAR override treaties when Are there any legislative proposals or open
for invoking the GAAR? invoked? consultations that may affect the future
composition of the GAAR?
Based on the tax authorities’ review of For international transactions, in
relevant information (such as account cases where a taxpayer attempts To combat offshore tax fraud, tax
ledgers or contracts) during the tax audit, to benefit unfairly by applying an authorities recently strengthened the
the tax authorities can invoke the GAAR indirect transaction through a third monitoring of overseas tax evasion.
for the tax assessment pursuant to a party or through two or more acts or A new tax provision on the mandatory
general substance-over-form principle transactions, then tax treaties, the reporting requirements of foreign
pursuant to the Basic National Tax Act. Basic National Tax Act and other tax law financial accounts held in overseas
would apply according to the economic countries was incorporated on
What is the general attitude of the tax substance of the transaction, assuming 27 December 2010. These measures
authority toward invoking the GAAR? such a transaction has actually been are intended to prevent overseas tax
made between the parties concerned evasion activities such as a resident or
The tax authorities are very aggressive
or such acts or transactions are a single domestic corporation hiding its assets
in invoking the substance-over-form
transaction in fact. In other words, GAAR overseas by using a foreigner’s name.
principle to deal with tax avoidance or
aggressive tax planning. would override treaties when invoked.
74 | GAAR rising
Contacts:
Sweden
Johan Hörberg
johan.horberg@se.ey.com
+46 8 5205 9465
Is the onus on the taxpayer or the taxing Is a clearance or ruling mechanism Please provide a summary of key judicial
authority to provide the burden of proof? available for a GAAR? decisions involving the GAAR or other anti-
abuse legislation.
The taxpayer has a general obligation It is possible to ask the Tax Law Board
to provide the tax authority with for a preliminary ruling of a proposed • Cases where rules for closely held
sufficient information to make a correct transaction. In such a ruling also the companies are circumvented
assessment. Generally, it is assumed question if a transaction could be subject • Cases where restrictions on usage
that the taxpayer must have the best to the GAAR or not is possible to get of net operating losses has been
knowledge of the reasons behind his or answered. The ruling can be appealed to circumvented
her actions, so the taxpayer has the onus highest administrative court, which may
of providing information that the actions or may not take the case up for ruling. • Cases where rules on tax beneficial
or transactions were made for reasons restructuring has been exploited
other than receiving a significant tax Does your country have a GAAR Panel?
benefit. If yes, do taxpayers carry out strategic Are there any legislative proposals or open
decision-making as to whether they appear consultations that may affect the future
before the Panel or not? composition of the GAAR?
What is the administrative or audit process
for invoking a GAAR? No. No.
Because of the nature of the GAAR, it
can, as a first instance, only be applied Can the GAAR override treaties when
by the first instance administrative court invoked?
(i.e., the tax authority cannot apply the Yes, Swedish GAAR rules can override
GAAR on a stand-alone basis). The GAAR tax treaties.
is tried by the first instance court at the
request of the tax authority, based on an What penalties may result from the GAAR
assessment of a tax return or as a result being invoked?
of findings in a tax audit.
There are no specific penalty rules
attached to the GAAR regime, so there
What is the general attitude of the tax
authority toward invoking a GAAR?
is no automatic penalty when GAAR
has been successfully applied. But this
Although the GAAR has not been used does not mean that a penalty will not
heavily in Sweden, it is not true to say be invoked. However, such a penalty
that it is rarely used. Typically the tax is normally due to the fact that the
authority would argue for GAAR to be taxpayer has not provided the tax
used if it believes the requirements are authority with sufficient information to
met and the actions or transactions make a correct assessment, with the
leading to the tax benefit cannot be penalty resulting from other applicable
questioned on other formal means. tax laws rather than as a direct result of
the GAAR.
76 | GAAR rising
Contacts:
Switzerland
Bernhard Zwahlen
bernhard.zwahlen@ch.ey.com
+41 58 286 6362
Walo Staehlin
walo.staehlin@ch.ey.com
+41 58 286 6491
What is the general attitude of the tax What penalties may result from the GAAR Withholding tax and anti-treaty-abuse
authority toward invoking the GAAR? being invoked? rules
Due to its federal organization, The mere application of GAAR does Voluntary or negligent tax evasion
Switzerland has 27 competent authorities not lead to penal measurements. The may be punished with a penalty of up
for corporate income tax (26 cantons applicable penal rules depend on the tax to CHF30,000 or (if higher) triple the
and the SFTA). For withholding tax, share concerned. penalty tax.
issuance and transfer tax, SFTA is the Corporate income tax The voluntary or negligent
only competent authority.
Voluntary or negligent tax evasion endangerment of the tax may be
As a result, the attitude depends on the punished with a penalty of up to
generally is punished with a penalty in
competent tax authority as well as the CHF20,000.
the amount of the evaded tax. In severe
specific case. A general attitude cannot cases, the penalty may amount up to the In any event, the tax remains due (i.e.,
be defined. triple of the evaded tax, whereas in cases it has to be paid in addition to any
of slight negligence the penalty may be penalties). For the late payment an
Is a clearance or ruling mechanism available reduced down to one third of the evaded
for a GAAR? interest of 5% applies.
tax.
Tax rulings may be obtained, they If further felonies are committed (e.g.,
If falsified documents are used in order falsification of documents or fraud), the
are granted only if filed prior to the
to commit a tax evasion (so-called tax penal code may apply in addition to the
realization of the facts of a case.
fraud), the penalty applied may be up to administrative criminal law outlined prior.
CHF30,000. Furthermore, a custodial
Does your country have a GAAR Panel? sentence may be imposed instead of a
If yes, do taxpayers carry out strategic Please provide a summary of key judicial
decision-making as to whether they appear
penalty. decisions involving the GAAR or other anti-
before the Panel or not? Cantonal tax laws may apply their own abuse legislation.
78 | GAAR rising
Contacts:
Turkey
Erdal Calikoglu
erdal.calikoglu@tr.ey.com
+90 212 368 5375
Yusuf Penezoglu
yusuf.penezoglu@tr.ey.com
+90 212 368 5547
What is the administrative or audit process Can the GAAR override treaties when Please provide a summary of key judicial
for invoking a GAAR? invoked? decisions involving the GAAR or other anti-
abuse legislation.
The tax authority initiates a tax As a domestic tax rule, a GAAR cannot
inspection of a company and requires the override treaties ratified by the Turkish Tax replenishment funds contributed
legal books and accounts of the company. Parliament, as there is a constitutional toward the equity of a company that has
The initiation of the tax inspection should rule stipulating that international treaties been incurring losses for many years
be recorded under the “tax inspection cannot be overruled by a domestic should be recharacterized as service fees
commencement minutes,” a document law. However, the substance-over- because having incurred losses for many
that is signed by the taxpayer and form principle can be easily applied or years is abnormal and inconsistent with
the tax inspector. The tax inspector considered when deciding tax issues in the general rules of commercial life.
prepares a tax inspection report in the scope of tax treaties. It is abnormal for a company operating
which the detailed explanations and in Turkey to import goods from a sister
supportive arguments that have caused What penalties may result from the GAAR company operating in a free trade zone
the tax authority to invoke the GAAR being invoked? with a buy/sell license at a higher fee
are presented to the taxpayer. The tax The applicable penalty in the case of than the purchase price said goods. The
inspection report is then communicated additional tax assessment is a tax loss transfer price for the company operating
to the taxpayer with the tax/penalty penalty. In principle, the amount of tax in Turkey should be considered as the
notification. penalty is equal to the tax principal to be purchase price of the sister company
assessed. However, in the case of a tax operating in the free trade zone.
What is the general attitude of the tax smuggling assertion, the tax loss penalty
authority toward invoking the GAAR? The tax assessment is made by the tax
is applied at three times the tax principal authority with an assumption that it is
The tax authority regularly invokes the to be assessed. abnormal to print a single invoice without
GAAR. necessary permissions; therefore, it
should be accepted that a series of
Is a clearance or ruling mechanism available invoices have been printed without
for a GAAR? necessary permissions until the serial
Yes. number of the single invoice identified by
the tax authority.
Does your country have a GAAR Panel?
If yes, do taxpayers carry out strategic Are there any legislative proposals or open
decision-making as to whether they appear consultations that may affect the future
before the Panel or not? composition of the GAAR?
No. No. There is a Draft Tax Procedural
Code under discussion at the tax
administration level. However, it contains
the same GAAR with no differences.
80 | GAAR rising
Contacts:
United Kingdom
Christopher Sanger
csanger@uk.ey.com
+44 20 7951 0150
Chris Oates
coates@uk.ey.com
+44 20 7951 3318
The GAAR study group, headed by Can the GAAR be applied retrospectively? Please provide a summary of key judicial
Graham Aaronson, QC, has now issued decisions involving the GAAR or other anti-
The UK GAAR Proposal suggests the abuse legislation.
a supplementary report in response to GAAR could be applied retrospectively
the consultation issued by HMRC. Overall to arrangements entered into but not Yes, the United Kingdom has a number
the GAAR study group agreed that the yet completed given that the rule would of anti-avoidance measures targeted at
consultation draft embodies all of the only capture artificial and abusive tax specific areas. Commonly referred to in
main principles that the study group schemes that are widely regarded as the United Kingdom as targeted anti-
considers need to be incorporated in, intolerable. avoidance rules (TAARs), these specific
and to form the framework of, a GAAR rules are found across a wide variety of
that would be appropriate for the United The general position of respect to statutory provisions and generally within
Kingdom. The study group considers retroactive legislation is that it is unusual the legislation granting the relief.
that the consultation GAAR is very well- even when it is counteracting highly
aggressive tax avoidance. However, It is estimated that there are more than
drafted, and it does not recommend
in limited circumstances HMRC has 300 TAARs. Some of the key TAARs
any amendments to the draft. The
introduced retroactive legislation to include rules around preventing:
study group does comment on the
differences between its suggestion and counteract highly aggressive avoidance • Groups acquiring companies that have
the consultation GAAR. In some cases arrangements. While there has been losses in order to offset group profits or
it accepts the change, but in others it some debate historically on whether acquiring profit companies in order to
highlights the need for care. In particular, retroactive legislation is in accordance utilize the group losses
the study group views it as essential that with “human rights” under UK or EU law,
• Groups acquiring companies that have
the guidance should be as impartial and as far as we are aware it has not been
capital losses to dispose of assets
objective as possible. held to be unlawful.
through in order to avoid capital
The closing date for comments was The UK Government’s intention is gains tax
14 September 2012. that retroactive legislation should
• Related parties from manipulating
be used only in “wholly exceptional
profits through the transacting at non-
On what class of taxpayer is the GAAR circumstances.” However, there is
market rates
typically invoked? Is it more likely to be precedent for retroactive rules to
applied at the corporate level as opposed to have been back dated indefinitely. • Parties obtaining tax advantages
individuals? For example, Finance Act 2008 made generated by transactions in securities
The proposed GAAR will apply to the amendments to certain income tax where it cannot be shown that the
main direct taxes (including bank levy) provisions to catch tax avoidance transaction was for a bona fide
and national insurance. As announced schemes. The statute stated that the commercial reason and that the tax
at the Budget, it will be expanded to amendments were to be “treated as advantage was not one of, or the main
cover stamp duty land tax. Therefore, always having had effect.” Retroactive objective of, the transaction
the proposed GAAR will cover both tax legislation typically applies to • Entities from avoiding income tax
individuals and companies. target a specific piece of aggressive tax through the sale or transfer of income
avoidance. However, as outlined prior, streams for lump sum consideration
in most instances even where there
is highly aggressive tax avoidance, • Losses arising through depreciatory
legislative changes are not retroactive. transactions, e.g., dividend or asset
stripping
As a result, it is currently uncertain as
to whether the GAAR will be able to be
applied retrospectively.
82 | GAAR rising
Contacts:
United Kingdom
Christopher Sanger
csanger@uk.ey.com
+44 20 7951 0150
Chris Oates
coates@uk.ey.com
+44 20 7951 3318
What is the general attitude of the tax Does your country have a GAAR Panel? What penalties may result from the GAAR
authority toward invoking a GAAR? If yes, do taxpayers carry out strategic being invoked?
decision-making as to whether they appear
It is too early to determine. However, before the Panel or not? The UK GAAR Proposal suggests that no
the UK GAAR Proposal suggests HMRC’s penalties (separate from counteraction)
attitude to the GAAR should be to use No, but as noted prior, the GAAR should be imposed.
it as a “shield” to protect the revenue consultation proposes the establishment
base and enterprises that do conduct of an Advisory Panel as recommended Please provide a summary of key judicial
responsible tax planning, rather than by Aaronson. The Advisory Panel will decisions involving the GAAR or other anti-
wield it aggressively. advise on the application of the GAAR abuse legislation.
to a particular transaction and approve
Not applicable.
Is a ruling or clearance mechanism
guidance produced by HMRC that must
available? be taken into account by a court in
determining whether the GAAR applies in Are there any legislative proposals or open
It has been proposed that there should consultations that may affect the future
a particular scenario. composition of the GAAR?
be no general clearance mechanism.
This is because a GAAR that targets Can the GAAR override treaties when The UK GAAR consultation process has
contrived and artificial arrangements, invoked? been described previously.
and not responsible tax planning, should
by its very nature render a clearance The Government has proposed that
mechanism unnecessary. the GAAR should apply to artificial and
abusive arrangements where UK tax
However, the UK GAAR Proposal advantages have been obtained through
suggests a simple option, such as an rights or benefits under any DTAs.
independent advisory panel, could be an Despite concerns that if the GAAR were
efficient mechanism to help taxpayers to negate the effect of DTAs, it would
and HMRC identify the outer limits of conflict with the United Kingdom’s duty
responsible tax planning. to abide by the terms of its agreement
with other countries, the Government
believes that the GAAR would be
consistent with the OECD commentary
on the Model Tax Convention.
84 | GAAR rising
Contacts:
United States
Michael Dell
michael.dell@ey.com
+1 202 327 8788
Rob Hanson
rob.hanson@ey.com
+1 202 327 5696
Is the onus on the taxpayer or the taxing Can the GAAR override treaties when Please provide a summary of key judicial
authority to provide the burden of proof? invoked? decisions involving the GAAR or other anti-
abuse legislation.
Generally, the burden of proof for The United States does not have a GAAR;
sustaining a tax position lies with the therefore, no conflict can occur with any As the United States does not have a
taxpayers. Generally, the burden of treaty provisions. Additionally, the US GAAR, there is no case law involving
proof for asserting a penalty lies with Model Income Tax Convention does not GAAR; however, there are key judicial
the government. There are exceptions to have a specific provision dealing with decisions involving the common law
both of these rules. tax avoidance actions with respect to doctrines that are designed to combat
US income tax treaties. Finally, there abusive tax avoidance actions by
What is the administrative/audit process are several IRC provisions that the IRS taxpayers, including:
for invoking the GAAR? can invoke for specific transactions Economic substance — section 7701(o)
LB&I Directive, LB&I-4-0711-015 or entities. However, it is unlikely that
any of those provisions would directly • Gregory v. Helvering (1935)
(15 July 2011), lays out when the
economic substance doctrine can be conflict with a provision in a US income • Rice’s Toyota World v. Commissioner
asserted in an audit. There are no special tax treaty. If there is a conflict between a (1985)
rules for the assertion of the other provision of domestic law and a provision
Substance over form
anti-abuse judicial doctrines. Rather, the in a US income tax treaty, a “later in
normal rules for the exam process under time” rule applies if the two provisions • Frank Lyon Co. v. United States (1978)
the Internal Revenue Manual apply. cannot otherwise be reconciled. Under • Saviano v. Commissioner (1985)
this rule, the last one to become law will
prevail. Sham transaction
What is the general attitude of the tax
authority toward invoking a GAAR? • Goodstein v. Commissioner (1959)
What penalties may result from the GAAR
It is IRS policy to only assert anti- being invoked? Step transaction
avoidance judicial doctrines where • McDonald’s Restaurants of Illinois v.
While there are no actual GAAR penalties
appropriate. Commissioner (1982)
in the United States, Sections 6011,
6111 and 6112 and the accompanying
Is a clearance or ruling mechanism available Are there any legislative proposals or open
for a GAAR?
regulations are designed to combat
specific types of tax abuse by requiring consultations that may affect the future
Generally, the IRS will not grant composition of a GAAR?
taxpayers and their advisors to disclose
advance rulings as to whether anti- particular transactions. There are No.
avoidance doctrines such as the also code sections providing penalties
economic substance doctrine apply to for failing to meet these disclosure
a transaction. It is possible, in some requirements.
circumstances, to obtain advance rulings
as to whether certain anti-avoidance The accuracy penalty may also apply
rules found in the Internal Revenue Code to understatements resulting from
apply to a transaction. avoidance transactions.
In particular, codification of the economic
Does your country have a GAAR Panel? substance doctrine created section
If yes, do taxpayers carry out strategic 6662(i), which contained a new 20%
decision-making as to whether they appear penalty on an underpayment attributable
before the Panel or not? to a disallowance of claimed tax benefits
No. because a transaction lacked economic
substance. (This penalty is increased
to 40% if the taxpayer does not provide
adequate disclosure of the relevant facts
affecting the tax treatment in the return
or a statement attached to the return.)
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