GAARs and Judicial Anti-Avoidance in Germany, the UK and the EU

S. 131C. Comparison of the GAARs

1. Introduction

The first main section laid the groundwork for the further analysis: It dealt with the judicial anti-avoidance doctrines as developed by the courts in Germany, the UK and in the EU. This second main section will now bring the statutory anti-avoidance rules into play, i.e. the GAARs. The focus thereby lies on the identification and the comparison of the various elements and requirements inherent in GAARs. Finally, the third main section will put the GAARs in relation with the judicially developed approaches against tax avoidance.

GAARs have either always formed part of a tax system or they have been introduced or suggested more recently. Accordingly, section C.2. will first of all elaborate on the policy considerations behind the introduction of a GAAR. Next, the wording and statutory requirements of each GAAR will be presented to the reader. Particularly important in that regard is section C.2.4., as it gives an overview of the common elements underlying the respective GAARs. This is crucial as the further structure of this main section builds on these common elements. It will thereby be worked out that the mechanisms of GAARs can be disassem...