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Taxation by Analogy

Australian Tax Review, Vol. 42, No. 4, pp. 255-268, 2013

Sydney Law School Research Paper No. 13/66

21 Pages Posted: 29 Aug 2013 Last revised: 29 Sep 2014

Graeme S. Cooper

The University of Sydney Law School

Date Written: August 27, 2013

Abstract

This paper argues that all anti-abuse rules in tax law require both a destruction and reconstruction step. The paper considers the claim, which prompted the 2013 changes, that Australia’s reconstruction rule was defective and then examines some of the theoretical options that were available for reforming the reconstruction step. It discusses some issues arising from the way the preferred rules are now built on an inconsistent foundation and ponders some of the curious outcomes that may arise when the new provisions have to be applied. While the mechanisms chosen for Australia may seem odd and contradictory, the experience elsewhere in the common law world does not offer a more cogent approach.

Keywords: Taxation, tax avoidance, statutory general anti-avoidance rules, reconstruction powers

JEL Classification: H20, H25, H26, K34, K42

Suggested Citation

Cooper, Graeme S., Taxation by Analogy (August 27, 2013). Australian Tax Review, Vol. 42, No. 4, pp. 255-268, 2013; Sydney Law School Research Paper No. 13/66. Available at SSRN: https://ssrn.com/abstract=2317055

Graeme S. Cooper (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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