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

S. 231D. Valuation of the GAARs

1. Introduction

Up to this point, two main issues have already been dealt with: Section B laid the ground for the further analysis: It dealt with judicially developed approaches against tax avoidance. Attentive readers will thereby certainly not have failed to notice certain parallels in the development of the courts’ approach towards tax avoidance. Vice versa, they will also have realised that there are certain issues where courts have expressed diverging views. Section C then dealt with the statutory approaches against tax avoidance, i.e. the GAARs. An analysis thereby focused on the functioning and the ideas behind each GAAR. One crucial finding made in this connection was that the scope of the GAARs is questionable.

Section D is now aimed at thinking this topic through to the end. First of all, section D.2. compares the judicially developed anti-avoidance doctrines. It will thereby be shown that the points of departure in the UK and in Germany were surprisingly similar. However, the further developments took completely different paths. The section also aims to explain the reasons for and consequences of these divergent approaches. Furthermore, the section...