Heresies of Anti-Avoidance Jurisprudence

Abstract

An examination of the history of New Zealand anti-avoidance jurisprudence brings to light a number of judicial approaches that have been, for one reason or another, misstated, misconstrued or needlessly discarded by later courts. This paper considers Lord Denning’s predication test, the distinction between tax mitigation and tax avoidance, the impropriety test formulated by Baragwanath J, Lord Templeman’s focus on economic loss, the scheme and purpose approach to statutory interpretation, and selected issues from the Supreme Court as notable instances of such judicial reasoning. A consideration of these judicial approaches highlights the difficulties faced by the courts; a consequence of the ectopic nature of anti-avoidance jurisprudence.