Which changes to the anti-avoidance rule have impacted the precedent effects of ConocoPhillips III as a result of the legislation?

Abstract

This master thesis has aimed to gain an understanding of how the enactment of the general anti-avoidance rule in the Tax Act has affected Norwegian taxpayers. To do so, we have dissected elements from Rt-2014-227, also known as ConocoPhillips III, to exemplify which changes the legislation brings with it. We have chosen this case because its precedent effects created uncertainty in the tax world, where a demerger conducted almost simultaneously to selling immovable property in the form of shares became accepted practice. Our interest in tax avoidance was prompted by the legislation itself, as we wanted to write about current affairs in the tax world. Part I includes a presentation of the topic and the thesis structure. Part II, analysis, starts off with a review of ConocoPhillips III and an examination of the changes to the general anti-avoidance rule as a result of the legislation, as well as an assessment of the relationship between the legislated anti-avoidance rule and ConocoPhillips III, with a conclusion of where the law currently stands. Furthermore, part II includes an analysis of arguments from the case that speak both for and against tax avoidance, where we have made conclusions as to whether the legislated anti-avoidance rule has had any impact on predictability for taxpayers, their need for legal expertise, the threshold for counteraction and if the time between demerging and selling shares is a factor that has lost its value. Our findings show that the precedent effects of the case have not changed as a result of the legislation, although the Ministry of Finance’s interpretation of the anti-avoidance bill created a plethora of uncertainty regarding whether the transaction chain in the case would remain accepted practice within the bounds of legal tax planning. Lastly, we have included three additional components; an assessment of whether the outcome of the case would be different after the legislation, the ethical and socio-economic consequences of the legislation, and whether the rule is in conflict with any international law.