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All taxing jurisdictions face the perennial challenge of how to define the boundaries of permissible tax planning and how to address and deter impermissible tax avoidance. Different jurisdictions historically and today have taken different approaches to this challenge, ranging from judicial doctrines of abuse of law or substance over form, to general and specific anti-avoidance rules enacted in the tax statute. This subject examines Australia’s general anti-avoidance rule in comparison with the approach to tax avoidance taken in other jurisdictions. The subject examines recent trends towards legislative general anti-avoidance rules. The focus is, in particular, on developments in the common law world, including the United Kingdom (where a general anti-avoidance statutory rule is proposed to be legislated), the United States, New Zealand and Canada. Attention may also be paid to anti-avoidance approaches in European and other contexts.
Principal topics include:
- Concepts of tax avoidance in Australia and comparative common law contexts, including the United Kingdom, United States, New Zealand and Canada, as well as European and other legal contexts
- The role of judicial doctrines and responses to tax avoidance in the common law and other judicial traditions
- General statutory anti-avoidance provisions in comparative legal contexts
- Obligations of taxpayers and advisers in relation to tax avoidance in a global and comparative context.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the statutory and common law rules that aim to define and address tax avoidance across a range of important jurisdictions in comparison to Australia
- Be able to critically examine, analyse, interpret and assess the effectiveness of these rules
- Be an engaged participant in debate regarding emerging and contemporary issues in the field
- Have a sophisticated appreciation of the factors and processes driving reform of the legal framework
- Have an advanced understanding of the significance of the role of the courts in judicial approaches to anti avoidance in the common law and other legal traditions
- Have a detailed understanding of the latest developments and trends in laws dealing with tax avoidance
- Have the cognitive and technical skills to generate critical and creative ideas relating to anti avoidance, and to critically evaluate them
- Have the cognitive and technical skills to independently examine, research and analyse the key elements and features of permissible tax planning as compared to impermissible tax avoidance
- Have the communication skills to clearly articulate and convey complex information regarding anti avoidance rules to relevant specialist and non-specialist audiences
- Be able demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of tax avoidance.
Last updated: 10 November 2023