Developments in Indian tax law over the last five years or so have brought to the fore the contentious issue of whether it is desirable to enact a General Anti-Avoidance Rule [“GAAR”] in India, and, if so, whether it is likely to be effective. As we have noted, the Direct Taxes Code proposes to introduce a significantly broad GAAR in India, with limited guidance as to its application.
In this context, it may be of interest to note that the UK Treasury has recently constituted a high-powered committee of which Lord Hoffmann and other distinguished jurists are members, to consider tax avoidance techniques in other jurisdictions, “what a UK GAAR can usefully achieve” and the “basic approach of a GAAR”. A list of the topics the Committee proposes to examine is available here. Of particular relevance to us are questions about the relationship between a GAAR and the existing tax code, the burden of proof and scope of application.