The actual GAAR is capable of being read as a wider general anti-avoidance rule because its crucial filter is based on reasonableness, not artificiality. As a result, it risks introducing considerable uncertainty into normal tax planning and adversely affecting the attractiveness of the UK as a destination for inward investment. The Guidance is a valiant attempt to reduce that uncertainty but, because avoidance is treated by HMRC as inherently unreasonable, it ultimately fails in that objective.

This article first appeared in The Tax Journal.