General Anti-Avoidance Rule
General Anti-Avoidance Rule
Tax avoidance measures are adopted by an individual or a company for the purpose of reducing the income tax burden. The general anti-avoidance rule permits tax officials to deny certain transactions or arrangements which lacks any commercial substance or consideration other than providing an undue tax benefit.
Impermissible Avoidance Agreement
To facilitate the general anti-avoidance rule, tax authorities are authorized to declare any transaction as an impermissible agreement. The fundamental objective of this provision is to prevent an individual or company from obtaining an undue tax benefit. An arrangement is considered impermissible if it creates rights or obligations which are not ordinarily created between persons dealing at arm’s length; lacks commercial substance and is devoid of good intentions.
Lack of Commercial Substance
An arrangement shall be deemed to lack commercial substance, if:
- The substance or effect of the entire agreement is inconsistent with the form of its individual steps.
- It involves round trip financing; an accommodating party; elements that effectually offsets or cancels each other; or a transaction which is conducted through one or more persons and disguises the value, location, source, ownership or control of funds which is the subject matter of such transaction.
- It involves the location of an asset or of a transaction, or of the place of residence of any party which is without any commercial purpose other than obtaining a tax benefit for a party.
- It does not have a significant effect upon the business risks or net cash flows of any party to the arrangement, with the exception of any effect attributable to the tax benefit that would be obtained.
Round Trip Financing
Round trip financing includes any arrangement in which funds are transferred among the parties to the arrangement, and such transactions do not serve any substantial commercial purpose other than obtaining the benefit of tax.
The party to an arrangement shall be an accommodating party if the primary objective of the participation of that party in the arrangement is to obtain a tax benefit for the assessee, whether or not a concerned party is a connected person in relation to any party to the arrangement.
Consequences of Impermissible Avoidance Agreement
If an arrangement is declared to be an impermissible avoidance agreement, the consequences, in relation to tax, of the arrangement, including denial of tax benefit or a benefit under a tax treaty, would be determined in an appropriate manner, in the circumstances of the case, including but not limited to the following:
- Disregarding, combining or rechristening any step in the impermissible avoidance agreement.
- Treating the impermissible avoidance agreement as if it had not been entered into or carried out.
- Disregarding any accommodating party or treating any accommodating/another party as the same person.
- Deeming connected persons as one and the same person for the determination of treatment of any amount.
- Reallocating amongst the parties to the arrangement any accrual or receipt of a capital nature; or any expenditure, deduction, relief or rebate.
- Treating the place of residence of any party to the arrangement; or the situs of an asset or of a transaction; at any place other than the residence, location of the asset or location of the transaction as provided in the arrangement; or considering or looking through any arrangement by disregarding any corporate structure.