Document Type

Working Paper

Publication Date

5-2018

Subjects

Tax, Income Tax Law, Canada

Abstract

Predictable statutory interpretation helps ensure the reliable operation of contemporary systems of taxation. Tax liabilities that are not clearly expressed and articulated by legislatures lead to over-reliance on litigation as a means to enforce and clarify legislative intent. For this reason, modern legislatures continually amend and draft new tax provisions, reformulating existing rules and introducing new ones to address ever-changing social and economic environments. Moreover, legislatures also respond with amendments directed at judicial decisions with which they disagree, as well as the transactions and arrangements at issue in these cases. As these amended and new rules are then subject to application and interpretation by revenue departments, taxpayers, tax advisors, and the courts, all of which legislatures may respond to through further subsequent amendments, tax legislation at any given time can be regarded as the recursive product of an ongoing dialogue.

At the same time, the proliferation of ever-more detailed provisions in tax legislation greatly increases the complexity of these statutes. The consequent tendency toward textual interpretation of tax legislation can facilitate tax avoidance that undermines the capacity of a tax system to raise revenue in a manner that is fair or equitable. For this reason, tax statutes like the Canadian Income Tax Act (ITA) typically combine detailed statutory provisions with more broadly-worded anti-avoidance rules that deny unintended tax advantages that might otherwise result from other statutory provisions. At the apex of these anti-avoidance rules stand general anti-avoidance rules (GAARs) like section 245 of the ITA. Section 245 denies tax benefits resulting from tax-motivated transactions that result in a misuse of other provisions of the ITA or other relevant enactments, or an abuse having regard to these provisions read as a whole.

In order to “legislate” statutory interpretation, therefore, legislatures generally employ two different approaches: enacting detailed rules in response to changing circumstances and judicial decisions, while simultaneously directing courts to prevent abusive tax avoidance by applying more generalized standards that require them to go beyond or behind the text of the tax legislation in order to deny tax benefits claimed by taxpayers that conflict with the object, spirit or purpose of these provisions. As this paper explains, judicial experience in Canada demonstrates a tension between these two approaches, since the existence of detailed statutory rules can make courts reluctant to apply a general anti-avoidance rule that requires them to depart from the statutory text.

This paper considers the GAAR in section 245 of the ITA as an example of legislated statutory interpretation, explaining the origins and structure of this provision and the extent to which it has shaped the interpretation of Canadian income tax law. Part II provides a background to the GAAR, contrasting the textual and formalist approach to tax statutes that was traditionally adopted by English and Canadian courts with the more purposive and substantive approach adopted by U.S. courts as well as English and Canadian courts in the 1980s and early 1990s. Part III explains the basic structure of the GAAR and the way in which Canadian courts have interpreted key elements of this provision. Part IV reviews key tax avoidance cases after the GAAR was introduced, illustrating a lingering affect of pre-GAAR interpretive approaches in the post-GAAR world, from which the courts have only begun to depart. Part V concludes.

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