Barriers to Avoidance: Recent Legislative and Judicial Developments in Common Law Jurisdictions

Abstract

Tax avoidance activity, like tax evasion, is neither unique to any one country nor a purely modern problem. It has been around, in varying degrees, wherever taxes have been levied. Many argue, however, that the scale of tax avoidance activity has grown significantly in more recent decades. They contend that an army of what Tanzi and Braithwaite have respectively called fiscal and moral termites has been eating away at tax revenue bases throughout the world in an unprecedented fashion over the last thirty or so years, and with increasing vigour in the last decade.

This paper explores the argument that some of the major common law jurisdictions face a greater threat than ever before, and that the integrity of the tax bases in those countries is being steadily eroded by sustained avoidance activity. The view is taken – hardly contentious – that there has been a growth in avoidance activity in recent decades.

The paper then considers some of the legislative, judicial and administrative responses to such growing threats. It is contended that the combined forces of the legislature, the judiciary and the administration have at their disposal a veritable battery of weapons that is more than capable of dealing with the onslaught of these so-called fiscal and moral termites.

Keywords: tax avoidance, common law jurisdictions, tax bases, tax planning