The Role of Subsequent Legislative Amendments in the GAAR Analysis

Numerous Canadian courts have used subsequent legislative amendments (amendments made after the time applicable to a transaction) as an important tool of statutory interpretation. In the tax context over the last decade, subsequent legislative amendments have been held to be particularly relevant to the third stage of the general anti-avoidance rule (GAAR) analysis: whether there has been a misuse or abuse of the object, spirit, and purpose of the provisions of the Income Tax Act that are relied on by the taxpayer. In this respect, the Minister typically argues that a subsequent amendment is evidence of a pre-existing policy in the Act that the taxpayer has abused. In contrast, from the taxpayer's perspective, amendments arguably demonstrate that a transaction did not offend any unwritten rule or policy at the time it took place. This article provides a brief review of the role of subsequent legislative amendments in the GAAR analysis. Published by LexisNexis in the January 2014 edition of Canadian Current Tax.