Towards integrity in tax law : the problem of form and substance in Canadian tax jurisprudence

Publisher

University of British Columbia

Date Issued

2009

Document Type

Thesis

Degree

Master of Laws - LLM

Program

Law

Description

This study examines the problem of form and substance in Canadian tax jurisprudence, which has been characterized by a troubling equivocation between formalistic and substantive approaches in cases involving tax avoidance transactions with the current period of jurisprudence dominated by formalism. The vacillation of Canadian jurisprudence contrasts with the consistently substantive tax jurisprudence of the United States. The latter situation discloses an unresolved doctrinal tension in Canadian tax jurisprudence between two viable doctrinal alternatives. This study seeks to resolve the problem of form and substance by finding the right answer to the problem by examining the tax policy, political, and legal philosophical implications of formalistic jurisprudence along with the manner in which the legal system as a whole (i.e. jurisprudence outside of tax law) rationally employs both form and substance for distinct purposes to solve distinct kinds of legal problems. Using the principles that are implied in the practices of the legal system as a whole, a right answer to the form and substance problem — one that is horizontally consistent or integral with the whole — suggest itself, namely that substantive, judge-made standards are the right solution to the problem of form and substance in Canadian tax jurisprudence and that formalism in tax jurisprudence is a legal aberration in the Canadian legal system.

Subject(s)

Tax law; Form and substance; Jurisprudence; Avoidance

Date Available

2009-02-02

Rights

Attribution-NonCommercial-NoDerivatives 4.0 International

DOI

10.14288/1.0070798

Affiliation

Law, Faculty of

ID

1.0070798

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