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Taxation – Disputes and Litigation

We provide strategic, technical and pragmatic solutions for the management of federal and state tax disputes.

Taxation – Disputes & Litigation

We focus on the facts (as evidence) to support the legal position taken and prepare for litigation from the outset – strengthening your position for settlement discussions and an early resolution.

Expertise

Our expertise includes:

  • obtaining rulings
  • reviewing specific tax positions and currency of advice
  • compliance advice
  • voluntary disclosure
  • end to end management of Part IVC disputes
  • litigation support and services at all stages (from inception to appeals)
  • freedom of information
  • alternative dispute resolution.

Experience

Our taxation disputes and litigation experience includes the following:

Tao Bai v Commissioner of Taxation

HIGH COURT SPECIAL LEAVE APPLICATION – Fraud/Evasion – Commissioners ability to extend time without providing adequate reasons or any proper foundation. 

Can Barz and anor v Commissioner of State Revenue [2016] QSC 059

PAYROLL TAXES – GARNISHEES OF TRUSTEES OF SUPERANNUATION FUND – a successful Application to set aside an attempt made by the Commissioner to intercept funds on the sale of an asset by a SMSF. 

Currently the subject of an Appeal by the Commissioner of State Revenue.

Bird and Scott as trustees of the Mewcastle Superannuation Fund v Commissioner of State Revenue [2016] QSC

PAYROLL TAX GROUPING PROVISIONS – In aligned proceedings with the Garnishee application, the Mewcastle SMSF trustees sought exclusion from a wider group – on various grounds including that the SMSF was not an ‘employer’ and had never carried on a business. The Supreme Court considered the statutory definitions and the regime as intended by the Legislature. The Court considered that it was bound to apply traditional Judicial Review grounds. 

Bridgehampton Pty Ltd v Commissioner of State Revenue [2016]

PAYROLL TAX AND SUBCONTRACTORS – Following a ‘Decision’ made by the Commissioner to slavishly adhere to an internal practice statement aligning the Queensland position with that in NSW/Victoria – an appeal was filed (and is currently before the Supreme Court) to contest the constitutional validity of particular provisions of the Payroll Tax Act 2008 (Qld). 

Commissioner of Taxation v Donoghue (2015) 237 FCR 316

LEGAL PROFESSIONAL PRIVILEGE AND DOCUMENTS ACCESS BY THE COMMISSIONER TO RAISE ASSESSMENTS – An appeal by the Commissioner to the Full Federal Court against the decision of Logan J. striking down assessments issued on the basis of tainted documents which were obtained by the ATO from a former disgruntled solicitor. 

In 2011, documents were provided to the Commissioner by a disgruntled former solicitor who had acted for the taxpayer in earlier proceedings. Orders were sought that the assessments be set aside on the basis of mal-administration – i.e. the documents were knowingly used by the Commissioner despite the possibility of attracting legal professional privilege. 

The decision of the primary judge was reversed on appeal and an application for Special Leave to the High Court was unsuccessful (2016 HCASL 131). 

Clark v Commissioner of Taxation [2010] FCA 415

INDEMNITY COSTS under Order 23 found to apply equally to the Commissioner of Taxation as it does to other litigants in the Federal Court. The Federal court (and later the Full Federal Court) ordered that the costs of Mr Clark be paid to him on a full indemnity basis.

CALDERBANK OFFER – whether the Commissioner acted “reasonably” in rejecting a walk away offer to settle on appealable objection decision arising under s 14ZZ of the Taxation Administration Act 1953 (Cth).

Clark v Commissioner of Taxation [2009] FCA 1401

TRUSTS – Creation of a new-trust – acquisition of trust with capital losses and subsequent absorption of capital losses (prior to implementation of the trust loss provisions) – onus of proof – sufficiency of evidence establishing losses. (Presently awaiting appeal decision being handed down by Full Federal Court).

Clark v Commissioner of Taxation [2011] FCAFC 5

TRUSTS – THE Commissioner appealed the decision at first instance to the Full Federal Court. We successfully defended the decision of the judge in the Federal court and the appeal of the Commissioner was dismissed. 

Commissioner of Taxation v Clark

HIGH COURT SPECIAL LEAVE APPLICATION – Following the loss before the Full Federal court the ATO requested leave to appeal that decision to the High Court of Australia. That leave was refused.

Dowling v Commissioner of Taxation, [2014] FCA 252

SUPERANNUATION – EXCESS CONTRIBUTIONS TAX. Whether the taxpayer ought to be subject to tax on the excess contributions paid following receipt of incorrect advice from accountants and bank.

Kelly v Commissioner of Taxation [2012] FCA 423

ASSIGNMENT OF INTEREST IN PARTNERSHIP – the appellant (a solicitor in a law firm) made two assignments of his partnership interest to separate trusts. He successfully argued that the second assignment was effective and that his income was effectively diverted to his family discretionary trust.

Kelly v Commissioner of Taxation [2013] FCAFC 88

ASSIGNMENT OF PARTNERSHIP INTEREST – An (unsuccessful) appeal by Mr Kelly against the trial judge’s refusal to find that the first assignment of the partnership interest was effective.

Damien Bourke

Damien Bourke

Partner

Brisbane

More info