Corporate Tax Planning: GAAR: An Economic Test?—The Courts Divide

Abstract

The authors of this article review the history and development of the general anti-avoidance rule (GAAR) in section 245 of the Income Tax Act (Canada), for the purpose of assisting in the analysis of recent decisions of the federal and provincial courts of appeal. They discuss the inherent difficulty in construing section 245 and outline various tests that the courts could have employed to interpret its provisions. The authors then review three of the four decisions in which the Supreme Court of Canada interpreted GAAR—<i>Canada Trustco</i>, <i>Mathew</i>, and <i>Copthorne</i>. With that background, the authors contrast the different approaches to the provincial general anti-avoidance rules taken, on the one hand, by the Alberta Court of Appeal in <i>Husky Energy</i> and <i>Canada Safeway</i>, the Ontario Court of Appeal in <i>Inter-Leasing</i>, and the BC Court of Appeal in <i>Veracity</i>, and, on the other hand, by the Quebec Court of Appeal in <i>OGT</i> <i>Holdings</i> and <i>Iberville</i>. They then compare and contrast those approaches with the pronouncements of the Supreme Court of Canada on how GAAR should be interpreted. The authors also discuss the approach taken by the Federal Court of Appeal in four recent GAAR decisions—<i>Univar</i>, <i>Oxford Properties</i>, <i>594710 British Columbia Ltd.</i>, and <i>Birchcliff</i>. They compare and contrast that approach with the approaches of the provincial courts, and consider whether the Federal Court of Appeal's approach is consistent with the Supreme Court of Canada's pronouncements on GAAR. Finally, the authors offer some advice for tax planners based on the recent GAAR decisions of the various courts of appeal.