Income Tax General Anti-Avoidance Rule
This paper provides an overview of the Canadian General Anti-Avoidance Rule (“GAAR”) including its history, legislative intent, implementation, resulting policy issues and judicial treatment. It argues that GAAR is vague, contrary to the doctrine of legal certainty and grants broad discretion to the government bodies tasked with its review and enforcement. While judicial treatment of GAAR to date has provided some direction, it has failed to provide certainty. This paper argues that the courts should presume Parliamentary ability and foresight with respect to the application of GAAR, including the misuse and abuse provisions, to effectively reconcile legal certainty and the individual’s right to be free from arbitrary appropriation of property with the provision’s otherwise laudable public policy objectives.
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