Where a case relating to the Scottish GAAR is before a court or tribunal:
- in determining any issues in connection with the Scottish GAAR, a court or tribunal is obliged to take account of any guidance published by us about the Scottish GAAR (including this guidance) at the time when the tax avoidance arrangement in question was entered into; and
- a court or tribunal may also take account of guidance, statements or other material (for example material provided by or on behalf of the Scottish Ministers such as the material referred to in RSTP8005) in the public domain at the time the tax avoidance arrangement in question was entered into, and may also take account of evidence of established practice at that time.
Where we have made adjustments to counteract a tax advantage under the Scottish GAAR and a case in relation to that counteraction is before a court or tribunal, the burden of proof is on us to demonstrate:
- that there is a tax avoidance arrangement that is artificial; and
- that the adjustments made to counteract the tax advantage arising from the tax avoidance arrangement are just and reasonable.