Manufactured Factual Indeterminacy and the Globalization of Tax Jurisprudence
4:2 University College London J. Law & Jurisprudence 250 (2015).
21 Pages Posted: 30 Nov 2015
Date Written: November 23, 2015
In this article the ‘manufactured’ factual indeterminacy now ubiquitous within the practice of international taxation is presented as a result of intersecting global approaches to the theory of law. It is argued that tax law practice assumes a mixture of the theoretical positions averred by Hans Kelsen, Karl Llewellyn, and Ronald Dworkin. To combat the problems raised by this, a ‘Soft Realism’ is proposed in the application of tax heuristics to deal with cases of factual indeterminacy. Drawing some implications from this analysis, the debate over general anti-avoidance rules and complex tax avoidance strategies (eg ‘treaty-shopping’ and ‘double non-taxation’) is oriented within the overall framework of tax jurisprudence. Finally, it is argued that the globalisation of tax jurisprudence has enabled accounting firms to actively spread manufactured factual indeterminacy around the world, corrupting the purpose of the law in part by exploiting the weaknesses of formalistic legal interpretation.
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