SDLT and Divorce: Transferring Property and the 3% Surcharge
Stamp duty on a divorce or separation can be complicated and it is very important to take advantage of the exemptions from stamp duty...
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The GAAR Guidance published by HMRC contains examples of when HMRC considers that the GAAR may or may not apply in relation to particular taxes.
The GAAR Guidance also contains examples of other types of arrangements that may or may not be caught by the GAAR.
It also includes the published opinions of the GAAR Advisory Panel, which offer guidance on types of arrangements the panel is not likely to have found 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.
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, however, and is free to agree or disagree with it in the circumstances of any particular case.
The GAAR Guidance says at A3 that its purpose is “…to help with the interpretation and application of the GAAR, by discussing its purpose, considering particular features of the GAAR and, where appropriate, illustrating that discussion by means of examples.” It is not helpful that some of the examples are incorrect and that 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.
No, the GAAR Guidance is written and published by HMRC and is approved by a panel of persons who are appointed by HMRC. They have sufficient time on their hands to review tax avoidance arrangements referred to them by HMRC and receive no pay.
The GAAR Guidance is merely advisory in character and while it assists the decision maker it does not compel a particular outcome. Under the UK’s constitution, it is still the judiciary, not HMRC, who have the final say on the meaning of tax legislation.
The guidance is published here.
Yes, VAT and stamp duties. The GAAR does, however, apply to SDLT.
According to the GAAR Guidance, the wholly artificial reliance on the terms of ‘double tax treaties’ to facilitate UK tax advantages that were not intended by either party to the agreement are within the scope of the GAAR.
Patrick Cannon’s book, GAAR A Practical Approach, has detailed discussion of the GAAR Guidance at chapter 7.
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