Avoidance Aftermath: Reconstruction in New Zealand and Australia

Abstract

An arrangement to minimise tax may go beyond legitimate tax planning and constitute tax avoidance. In this event, the Commissioner1 has wide powers to negate any impermissible tax benefit obtained from the arrangement. In negating a tax benefit, the Commissioner undertakes what is commonly referred to as a “reconstruction”.2 For income tax purposes, the Commissioner’s reconstructive powers are set out in s GA 1 of the New Zealand Income Tax Act 2007 and s 177F of the Australian Income Tax Assessment Act 1936 (Cth).3 The focus of this paper is on the nature and scope of the Commissioner’s reconstructive powers under these provisions. The first part of this paper provides a brief overview of tax avoidance in New Zealand and Australia. The second part analyses the position before the Commissioner had the ability to reconstruct. The next part introduces each jurisdiction’s reconstruction provision. The provisions are then compared for similarities and differences under a thematic approach. Finally, the paper summarises the Commissioner’s powers under the reconstruction provisions in New Zealand and Australia.