There are too many witchdoctors in our tax courts: is there a better way?

Abstract

The traditional methodology employed by the judiciary in tax cases leads to narrow definitional debates abstracted from a consideration of policy and principle. With each new case we expect a resolution of fundamental issues and some clarity. But this is rarely achieved and the uncertainty and ambiguity associated with our tax laws compounds. We need to depart from the traditional methodology and embrace an approach in which the judiciary expressly acknowledges policy considerations when deciding hard tax cases. Thus our legal witchdoctors need to embrace a new methodology. Such an approach can be demonstrated by reference to recent general anti-avoidance cases.