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E-raamat: Sham Transactions [Oxford Scholarship Online e-raamatud]

Edited by (Associate Dean (Engagement) and Director of Tax Studies, Melbourne Law School), Edited by (Barrister, New Square Chambers, Barclay's Bank Lecturer, Christ Church, Oxford University)
  • Formaat: 344 pages
  • Ilmumisaeg: 31-Oct-2013
  • Kirjastus: Oxford University Press
  • ISBN-13: 9780199685349
  • Oxford Scholarship Online e-raamatud
  • Raamatu hind pole hetkel teada
  • Formaat: 344 pages
  • Ilmumisaeg: 31-Oct-2013
  • Kirjastus: Oxford University Press
  • ISBN-13: 9780199685349
The doctrine of sham is one that pervades the common law. This book will be the first cross-disciplinary analysis of all aspects of the sham doctrine, from its history and development to its varied practical applications. For practitioners used to working in only one area of sham, this volume allows a broader appreciation of the doctrine as it is applied in diverse legal areas, such as tenancy law, trusts, employment law and tax.

These several areas are expounded by experts in their field, including both leading practitioners and distinguished scholars. Each contribution considers how key themes apply in each field, such as how the doctrine of sham is related to deceit or fraud, why the doctrine has been found to be useful and how it relates to other principles of statutory interpretation.

This wide-ranging work is brought together, not only by these key themes, but by the comparative analysis of the editors, making this a substantial contribution to the understanding of the common law doctrine of sham.
Foreword v
Editors' Preface ix
List of Contributors
xix
Table of Cases
xxi
Table of Legislation
xxxix
Table of UK Statutory Instruments
xlii
I Context and History
1 Introduction: `Sham' Transactions
A The Snook Case in Context
6(17)
B The Origins of Sham Reasoning
23(11)
C `Sham' Transactions and the Limits to Legal Effectiveness
34(24)
D Sham, Purposive Construction, and Tax Law
58(29)
E Sham Reasoning: Broad or Narrow?
87
2 Sham: Early Uses and Related and Unrelated Doctrines
A Introduction
1(5)
B Sham
6(12)
C `Colour' and `Colourable'
18(16)
D Fraus Legis and Related Doctrines
34(6)
E Simulation and `Simulated'
40(2)
F Towards Snook
42(18)
G Not Connected: Lease, Licence, and Labels
60(7)
H Conclusion
67
3 The Judicial Doctrine in Australia
A Introduction
1(3)
B Sham and Principles of Legal Construction
4(14)
C Sham in the Context of Legislative Regimes
18(11)
D Sham in Tax Law
29(18)
E Elements of Sham in Australia
47(7)
F The Policy and Law of Sham
54
4 Sham Transactions in the United States
A Introduction
1(4)
B Corporate Tax Abuse and Judicial Uncertainty in the US
5(27)
C A Study of Corporate Tax Abuse in the US Supreme Court
32(27)
D Shams in Other US Legal Contexts
59(2)
E Conclusion
61
5 Sham and Purposive Statutory Construction
A Introduction
1(6)
B Norglen and Circuit Systems
7(13)
C The `Advance' and `Retreat' in the Tax Context
20(11)
D The Westminster Case
31(9)
E Conclusions
40
II Sham Transactions
6 Tenancy Agreements
A Applying Ordinary Principles of Private Law
5(9)
B Explaining the Anomalous Cases
14(35)
C The Implications of the Proposed Solution
49(6)
D Conclusion
55
7 Trusts and Intention
A Separate Doctrine?
6(24)
B Mutual Intention?
30
8 Trusts: A Practitioner's Perspective
A Application of the Doctrine
3(1)
B Identifying the Sham Transaction
4(3)
C Identifying the Real Transaction
7(2)
D Settlor's Intention to Create a Sham
9(8)
E Intention of Other Parties
17(13)
F Dispositions Intended by Settlor: Enforceability Generally
30(3)
G Assets Intended to be Held for Settlor: Position of Settlor
33(5)
H Assets Intended to be Held for Settlor: Position of Trustees
38(2)
I Assets Intended to be Held for Settlor: Position of Third Parties
40(16)
J Challenges to Sham Trusts
56(4)
K Conflict of Laws
60
9 Company Charges
A Introduction
1(4)
B Legal Features of Fixed and Floating Charges that Influence Drafting Decisions
5(8)
C The Development of the Agnew Approach to the Construction of Charges
13(15)
D A Comparison: Extended Retention of Title Clauses
28(19)
E The Relevance of Sham Reasoning to the First Stage of the Agnew Analysis
47(15)
F The (Ir)relevance of Sham Reasoning to the Second Stage of the Agnew Analysis
62(7)
G The Practical Significance of Sham Doctrine in the Avoidance of Floating Security
69(8)
H Conclusion
77
10 Employment Law
A Introduction
1(4)
B Employees and Workers
5(19)
C The Courts' Approach
24(22)
D The Future of the Contract in Employment Law
46(11)
E Conclusion
57
11 Piercing the Corporate Veil
A Introduction
1(3)
B The History of Separate Personality and the Non-Recourse Rule
4(5)
C Respecting Separate Personality
9(7)
D When Will the Veil be Pierced at Common Law?
16(36)
E Is `Sham' Reasoning Useful Here?
52(5)
F Conclusion
57
III Taxation and Purposive Statutory Construction
12 Tracing the Boundaries of Sham and Ramsay
A Prologue
1(7)
B Sham Transactions and Tax Avoidance Schemes
8(9)
C Acquiring and Disposing of Securities for Tax Advantage
17(13)
D The Relevance of `Intention'
30(7)
E A Legal Analysis of Mr Berry's Arrangements
37(8)
F Sham
45(9)
G The Outcome
54
13 Sham, Tax Avoidance, and a GAAR: A New Zealand Perspective
A Introduction
1(3)
B The Sham Construct
4(8)
C The Sham Doctrine in a Jurisdiction with a General Anti-Avoidance Provision
12(31)
D Conclusion
43
14 Sham in the Canadian Courts
A Introduction
1(3)
B Sham as a Judicial Anti-Avoidance Doctrine in Canadian Tax Law
4(27)
C Recent Moves to Expand Sham
31(14)
D Discussion
45(7)
E Conclusion
52
15 Sham, Tax Avoidance, and `A Realistic View of Facts' in the UK
A Introduction
1(6)
B The Ramsay Approach and a `Realistic View of Facts'
7(13)
C Tower MCashback
20(11)
D Conclusion
31
16 Sham and Tax Law in Australia
A Starbucks, Transfer Fees, and Funding the Modern State
1(11)
B The Decision in Raftland
12(7)
C Three Reasons for Reluctance towards `Sham'
19(13)
D The Current Doctrine of `Sham'
32(15)
E A Recent Case
47(7)
F Conclusions
54(235)
Index 289
Edwin Simpson is a Tutor in Law and the Barclays Bank Lecturer in Taxation at Christ Church College, Oxford. He he teaches in public law and maintains an interest in the fields of trusts and tax and lectures on the Oxford B.C.L. on tax avoidance. He was called to the Bar in 1990. He appears frequently at Public Inquiries considering Highway matters, Town and Village Greens, and the mapping of access land pursuant to Countryside Act 2000; and advises in connection with all aspects of such work.



Miranda Stewart is a Professor of Law, Associate Dean (Engagement) and Director of Tax Studies at Melbourne Law School. She has many years experience in tax law in Australia and overseas. She is an International Fellow of the Centre of Business Taxation at Oxford University and was recently a visiting scholar at Christ Church, Oxford on the Melbourne-Oxford Faculty Exchange. Before joining the Faculty in 2000, Miranda taught at New York University School of Law in the leading International Tax program in the US. She previously worked in the Australian Tax Office on tax policy and legislation and as a solicitor at Arthur Robinson & Hedderwicks. Miranda's current research is on tax law and development, international tax coordination, and issues of gender and tax.