Tax Avoidance, the Rule of Law and the New Zealand Supreme Court

This paper examines the approach that the New Zealand Supreme Court, which was established in 2004, has taken to the problem of tax avoidance. In particular, it examines Ben Nevis Ltd v Commissioner of Inland Revenue (which concerned the General Anti-Avoidance Rule – or GAAR – contained in the Income Tax Act) and Glenharrow Ltd v Commissioner of Inland Revenue (which concerned the GAAR contained in the Goods and Services Tax Act). These cases lend weight to the theory that the idea of tax avoidance is not susceptible to coherent explication and that rules against it are therefore inescapably problematic – to the extent, even, that they constitute a departure from the rule of law. The cases also suggest, however, that having a GAAR is nonetheless better than not having one. It seems clear, too, that the Supreme Court has already, in these two cases, both clarified the law and taken a tougher line against tax avoidance than did the Privy Council.