Unlike the vast majority of the specific provisions contained in the Income Tax Act, Parliament has left the general anti-avoidance provision deliberately general, where the Supreme Court in the leading case on tax avoidance (Ben Nevis) stated that the courts should not strive to create greater certainty than Parliament has chosen to provide.
That means that it is often a process of drawing a line in order to distinguish between a permissible tax advantage that has been contemplated by Parliament and one which falls foul of the legislature.
The presenters provide insights into answering the Supreme Court’s ultimate question – whether the impugned arrangement, viewed in a commercially and economically realistic way, makes use of the specific provision in a manner that is consistent with Parliament’s purpose. This involves an examination of both an arrangement’s legal form and its economic and commercial substance.
- Develop a greater understanding about the legal context, including the general anti-avoidance provision, key case law and the disputes process.
- Gain insights into what is taken into account in determining on which side of the line an arrangement falls.
- Receive guidance on how to determine whether an arrangement (which can include common transactions) is consistent with, or falls foul of, the legislative purpose.
Who should view?
Commercial lawyers and general practitioners.
Access details will be delivered via email within 15 minutes.
Senior Tax Counsel, Legal & Technical Services
Tom Fraser is a Senior Tax Counsel in Inland Revenue and has been with the Department for more than 12 years. He has worked on a wide range of avoidance issues, but has specialised in the complex financing area.
That work included the drafting of statutory dispute documents for avoidance disputes with large corporate taxpayers. He also assisted in preparing these cases for subsequent litigation. He has presented on many occasions within Inland Revenue on avoidance related topics.
Tom is also a member of AMINZ.
Principal Advisor, Large Enterprises
Paul Hale is a principal advisor for Inland Revenue specialising in financial arrangements and financial markets. Paul was the first person to be appointed to the position of principal advisor when it was first introduced to the Revenue back in 2004 with a purpose of providing a significantly higher level of commercial capability to the Commissioner’s resources.
At the time of his appointment Paul had over 20 years experience in the financial markets and corporate sectors, which included 7 years as the group treasurer of Countrywide Bank before it was sold by Bank of Scotland and merged with the then National Bank of New Zealand.
During his time with the Revenue Paul has become an expert on the Financial Arrangements Rules (FAR) and has worked widely across difference segments of the Revenue, including Policy Advice, the Office of the Chief Tax Counsel and Service Delivery.
A significant amount of Paul’s time with the Revenue has been devoted to corporate tax avoidance where he has been able to offer a commercial overlay to certain legal structures undertaken by some taxpayers. More recently Paul’s focus has been directed towards funds transfer pricing and its connection with base erosion profit shifting (BEPS).
Fred brings many years of experience to his role as a partner in Russell McVeagh's tax team. His practice has a particular focus on corporate finance work, mergers and acquisitions, and structured investment products. Offering both tax advice and litigation services, Fred is a highly regarded tax specialist.
With more than 20 years’ with the partnership, Fred’s work has involved offering clients a broad range of taxation services, including advice on cross-border financing structures, mergers and acquisitions and dealing with the Inland Revenue at all levels of the investigation process, including negotiating settlements.