Comparing the General Anti-Avoidance Rule of Income Tax Law with the Civil Law Doctrine of Abuse of Law
Bulletin for International Taxation, April 2008
21 Pages Posted: 22 Sep 2009 Last revised: 5 Oct 2017
Date Written: October 14, 2008
This paper is available in Japanese, translated by Professor Fumihiro Komamiya under the following name: この論文の日本語版は、次のURLで参照することができます http://ssrn.com/abstract=1479931
This article compares the general anti-avoidance rule of income tax law with the civil law doctrine of abuse of law (Rechtsmissbrauch, abus de droit) in eight jurisdictions: Germany, Croatia, New Zealand, Australia, France, the United States, the United Kingdom and the European Union. The article deals with the core concept of avoidance and addresses the statutory and judge-made general anti-avoidance rules in these jurisdictions. The article focuses on transactions that most people would recognize as avoidance and on how these eight jurisdictions either frustrate avoidance or allow it.
Writers who contributed to the article and the jurisdictions that they covered include: Séverine Baranger (France, general anti-avoidance rule), Dennis Becher (Germany, abuse of law), Svenja Brandt (Germany, general anti-avoidance rule) David Dunbar (Australia), Matthew Fountain (New Zealand), Franca Frenzel (European Union), David Pickup (United Kingdom), Philip Postlewaite (United States), Rebecca Prebble (Croatia), Viktoria Preusker (Germany, abuse of law), Yves-Louis Sage (France, abuse of law).
Keywords: tax, general anti-avoidance rule, GAAR, avoidance, abus de droit, abuse of law, abuse of rights, substance, form
JEL Classification: K34
Suggested Citation: Suggested Citation