The GAAR Guidance published by HMRC contains examples of when HMRC consider that the GAAR may or may not apply in relation to particular taxes at Part D. The GAAR Guidance also contains other examples of types of arrangements that may or may not be caught by the GAAR. There are also then published opinions of the GAAR Advisory Panel which offer guidance on types of arrangements the panel is likely to find not to have been a reasonable course of action.
A court or tribunal must take into account the GAAR Guidance and any opinion of the GAAR Advisory Panel and may take into account other guidance and material. The word must seems to have little, if any, effect on the approach that a judge should adopt. This is because it can be expected that a judge would always take such guidance into account as relevant in any event. The judge is not directed or required to follow the guidance and is free to agree or disagree with it in the circumstances of any particular case.
The GAAR Guidance itself says at A3 that it is “…an aid to the interpretation and application of the GAAR , by discussing its purpose, considering particular features if the GAAR and, where appropriate, illustrating that discussion by means of examples.” It is not helpful that some of the examples are incorrect and part of the guidance is at odds with the statutory provisions.
The GAAR Guidance does not have the status of statutory rules and is not subject to formal Parliamentary scrutiny.