Judicial Legislation and the Rationalisation of Section 260 of the Income Tax Assessment Act 1936

Abstract

Section 260 is a general anti-avoidance provision found in the Income Tax Assessment Act 1936. Together with sections 25(1) and 51(1), it is one of the most important sections of the Act. To the “tax planner” section 260 spells anathema: to the Revenue it is an invaluable aid to prevent tax avoidance and preserve tax equity. Judges have tended to differ in their attitudes towards section 260. This article examines the treatment of the section in the hands of the judiciary, its interpretation and misinterpretation. In addition, the article seeks to highlight a significant point, namely, that the alternative to a general anti-avoidance provision is anti-avoidance legislation of a specific nature which would add tremendous complexity to an already complex Act. The plea therefore is that the judiciary should re-assess the situation they have helped bring about before it is too late, and that judicial common sense be substituted for the growing complexity of the Income Tax Assessment Act.