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This article raises a dissenting voice against the widespread scholarly view that discretion in remedying legislative infringement of rights can be dialogic, gentle, and cooperative. It focuses on delayed and prospective orders under the Canadian Charter of Rights and Freedoms and the South African Bill of Rights. Scholars have neglected remedial discretion’s significant negative consequences. It harms litigants and other right bearers, potentially producing perverse systemic effects. In particular, keeping a rights-infringing criminal prohibition temporarily in force is unlikely to achieve legal certainty and risks undermining the rule of law. Far from being restrained and deferential, remedial discretion increases the reach of judicial decision-making and enables judges to shape new law more boldly. The widespread exercise of remedial discretion calls for refashioning the conception of a bill of rights’ place in a supreme constitution. If delayed or prospective remedies are sometimes appropriate, they are not something to celebrate.
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This paper explores the means by which tax authorities worldwide seek to strengthen their tax treaties, through safeguards of varying nature and scope, in order to identify and prevent what they consider to be abuse of such treaties. These means of challenge may be grouped under two headings: purposive approaches to treaty interpretation, particularly with respect to the terms 'person', 'resident' and 'beneficial ownership'; and broader responses to unacceptable tax avoidance, specifically reliance on treaty anti-abuse principles and domestic anti-avoidance rules. The Canadian response is evinced by two recent cases in which the government unsuccessfully challenged 'treaty shopping' arrangements, MIL (Investments) SA v Canada and Prevost Car Inc v Canada. Building on the existing literature regarding tax treaty shopping and other forms of tax treaty abuse, this work seeks not only to describe and explain the responses to treaty abuse but to make a critical inquiry into the essence of such abuse, particularly as it appears to be viewed by the Canadian revenue authorities. It is argued that the Canadian response to tax treaty abuse is inadequate, largely because it conflates multiple approaches and fails to address a key concern: the existence or lack of genuine economic establishment in the treaty state. The paper concludes with some suggestions for fashioning a more coherent and intellectually honest response to tax treaty abuse.
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This book comprises a selection of papers presented at a conference in honour of John Avery Jones which was held on 22 and 23 April 2010 in London.Why this book?This book comprises a selection of papers presented at a conference in honour of John Avery Jones which was held on 22 and 23 April 2010 in London. The conference brought together experts in international and UK domestic taxation from around the world to celebrate Dr. Avery Jones's contribution to the fiscal arena to mark his 70th birthday and forthcoming retirement as Judge of the First and Upper Tier Tax Tribunals.The participators of the conference were drawn almost exclusively from three groups: the International Tax Group (ITG) of which Dr. Avery Jones was one of the founder members; the Advisory Group on the OECD Model; and UK tax academics. The papers reflect Dr. Avery Jones's many areas of interest, covering both international taxation and various aspects of UK domestic taxation. Many of the papers drew their inspiration from Dr. Avery Jones's academic writings or from his contribution as a tax judge.
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Income taxation is the fuel and vector of the economic policy of many states. This concise book, destined to students, practitioners and policy makers, explains the issues of taxation of transnational income in a world of sovereign states: how to prevent unjust and inefficient double taxation of the same income, by allocating the tax base between source and residence state and properly allowing in the latter for the tax levied in the former? How to prevent abuse by taxpayers or states, furthering tax evasion or avoidance and causing other but equally significant injustices and inefficiencies? Solutions developed over a century of practice are analyzed. That field of the legal art & science is still young and the paradigm for ideal taxation in the global village of the XXIst century is yet to be invented
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Pour dévoiler les dessous du centre financier luxembourgeois, nous avons constitué une vaste base de données inédite, regroupant les propriétaires réels des 140 000 sociétés immatriculées au Luxembourg et le détail de leurs actifs financiers.
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