On The General Anti-Avoidance Rule

As the law relates to the property distributed between state and taxpayers, the tax law's main tasks include two aspects: first, through the obligation of paying tax to state, the tax law guarantees the state's revenue and fiscal base; second, the tax law can prevent the state from intervening the people's property rights unduly and ensure the social economic activity's freedom to a certain degree. The anti-avoidance issue in the tax law reflects intensively the resolution of these two contradictions. On the one hand, the anti-avoidance rule can crack down the avoidance activity and guarantee the state's revenue source is the direct purpose of the anti-avoidance measures; on the other hand, it leaves as much room as possible for the taxpayer's normal economic activity and safeguards the taxpayer's legitimate rights and interests. How to put these two problems in a state of balance has always been a difficult problem for the legislature and academic circles. Fortunately, the general anti-avoidance rule (GAAR) that is adopted by some states has shown its unique superiority in coordinating the avoidance problem solution and safeguarding the taxpayer's rights. Therefore, it is necessary to make a study of this new rule and I hope it will provide a new thinking and method to solve our country's tax avoidance problem.This article consists of three parts. The first chapter is about the jurisprudence analysis of the GAAR. Firstly, the author contrasts the GAAR with the traditional anti-avoidance rule, analyzing these two rule's respective advantages and disadvantages, and then concludes the necessity to adopt a GAAR. Next, the article presents the component elements of a GAAR. Among them, the avoidance problem is elaborated from different aspects. The reason why explain the avoidance problem in detail is that the avoidance is the object and the base to the anti-avoidance rule applied. Besides, this article probes into the relationship between the GAAR and the rule of law, the GAAR and the special anti-avoidance rule. The second chapter presents some countries'legislation and practice situation about the GAAR, including Australia, Spain, Canada, Germany and France. In the meantime, the article also gives two typical precedents about GAAR which were decided by the Canada court. Such two different judgments illustrate how the Canada court applies...