Tackling tax avoidance through a GAAR

22 June 2012

Reform roundtable seminar on tackling tax avoidance through a General Anti-Abuse Rule on Thursday 21 June 2012. Introduced by Graham Aaronson QC, lead author of GAAR study into tax avoidance and responsible tax planning for HM Treasury.

“It’s a game of cat and mouse. The Revenue closes one scheme, we find another way round it”. This is how an accountant this week described the tax planning practices adopted by his firm. A General Anti-Abuse Rule, currently under consultation by HM Treasury, would seek to target tax avoidance schemes that are found to be abusive, while at the same time protecting normal tax planning. Yesterday Reform held a roundtable discussion on “tackling tax avoidance through a General Anti-Avoidance Rule (GAAR)” with Graham Aaronson QC, lead author of the GAAR study into tax avoidance and responsible tax planning for HM Treasury last year.

This lunch could not have been more timely. Newspaper headlines have this week been dominated by cases of high profile tax avoidance. No tax law has been broken, but the use of complex and novel investment vehicles has been described as an error of judgement and immoral. This can be disputed, yet a tax rule focusing on “abuse” rather than “avoidance”, is being widely touted as a mechanism to prevent the ‘fancy footwork’ that some use to limit their tax liability.

There was a general consensus that a GAAR now seems inevitable, but we should not expect too much. Though a GAAR would represent a stronger approach to tackling tax abuse than currently in place, the lunch raised a number of concerns over the unintended consequences of any legislation.

There was concern that a GAAR could increase the complexity of our tax system further, contradicting the current UK tax policy objective of tax simplification. One strength of the UK tax system, though complex, is its rule-based and consistent application. Frequent changes to the tax system are a major concern to businesses and investors in the UK, and a GAAR would introduce an element of uncertainty into the tax system. Rulings on tax affairs would be determined by advisory panel on the basis of what is “just and reasonable”.

Those who believe that reducing tax abuse will improve the UK’s fiscal position will be disappointed. The last published figure for the tax gap (the difference between the tax collected and the theoretical amount that should be collected) is £35 billion. This includes £10 billion of tax avoidance and ‘legal interpretation’ and £4 billion of evasion (i.e. deliberate under declaration of tax liability) – in total just 2 per cent of annual Government spending. In addition to focusing on increasing tax revenue, the Government should continue to target Government spending reductions.

In spite of these arguments there was support around the room for a GAAR. The UK is one of few countries that doesn’t already have some form of anti-abuse rule in place, and many hoped it could pave the way for a change in culture and attitude towards tax planning. With a rule in place, individuals and tax planners could be less likely to participate in tax schemes that put them at the margin of what is considered acceptable. This would no doubt benefit society by rebuilding trust between business and the public, and reducing the opportunities to attack wealth creators – there was consensus that this harms the UK PLC and is contrary to the pro-business message that the Government seeks to deliver.



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