It would be interesting to know whether there is any difference in view between those Tax Journal readers who are accountants in practice, lawyers in practice or in-house Tax Directors. I suspect their views could be quite different. Indeed, in July I wrote a piece: Would a GAAR mean less work for accountants? In it I referenced a recent conversation with a Tax Director that had prompted that idea.
I'd like to raise a different issue now. That is: the reaction of Tax Barristers (Counsel) who advise on tax schemes.
In this context Tony Beare, Head of Tax at Slaughter and May, writing in the Tax Journal recently suggested that HMRC might not litigate the GAAR:
"One can easily foresee the possibility that HMRC might use a GAAR in a similar way to its past practice in relation to the TAAR in CTA 2009 s 441, which is to raise the possible application of the provision in any ongoing dispute but not take the matter to litigation, with the result that the exact parameters of the provision are never circumscribed by a court."Which takes us back to my earlier point. If the rationale for introducing a GAAR is to limit the promotion of structured avoidance schemes, much will depend on the views of Tax Barristers. Until then the promoters will continue to proudly announce that they have yet to lose their arguments in court.