Tax Disputes
As practising lawyers and Chartered Tax Advisers, Dwyer Lawyers have helped clients navigate disputes with the Tax Office. In some cases, we have been able to persuade the Tax Office that they were not correct and they have accepted that the law was in the taxpayer’s favour.
Tax disputes are invariably stressful and involve costs for all concerned. We certainly do not encourage litigation and do our best to ensure it is avoided.
However, sometimes things do go wrong and, sometimes, horribly wrong. Sometimes the tax authorities just get it plain wrong. Sometimes a perfectly innocent and honest taxpayer can find himself on the cutting edge of a very difficult and confusing tax dispute where roadmaps, such as decided cases, do not exist.
We know that receiving an adverse tax decision can cost you a lot of money and can create enormous worry. We can help you find out if the decision is wrong.
We have the experience, deep knowledge and understanding of the tax laws and the principles underpinning the tax system to advise and guide you through a tax dispute from first objection to ultimate resolution.
Objections to taxation assessments
When a taxation assessment is incorrect, we will help you to prepare and submit an objection to that assessment. We help our clients set out facts and arguments clearly and logically, clarifying issues and eliminating confusion to guide them through the objection process toward successful outcomes.
Tax litigation
In situations where a tax objection has not been successful, particularly in complex high-value matters, you may want to bring the decision to the Administrative Appeals Tribunal (AAT) for a fresh examination of your facts and circumstances. We help you with all aspects of preparation and presentation of your case in the AAT.
We can assist you with both straightforward issues and in complex tax matters – for instance, we have successfully litigated a client’s case under a part of the Tax Administration Act where there had been no previously decided cases.
We approach litigation with the following basic rules to guide us.
- The taxpayer has to be perfectly frank and honest. Apart from the basic rule, “Thou shalt not bear false witness”, the simple fact is that the taxpayer bears the onus of proof in disputing tax assessments. If there could be any doubt in a Tribunal or Court’s mind about the facts put forward by the taxpayer, the case is likely to need careful investigation and presentation. A taxpayer needs to be open and forthcoming and must never mislead Tribunals, Courts or their lawyers.
- The officers of the ATO are entitled to respect. The Commissioner of Taxation, for example, is meant to conduct himself as a model litigant and we believe that the taxpayer’s representative should do no less, or even more. Courtesy is not an old-fashioned virtue and, in stressful situations, it is essential for good communication and for achieving a successful outcome for our clients.
- Although litigation is inherently adversarial, the task is to achieve the correct result. Our approach is to bring the dispute to an appropriate and favourable conclusion which will commend itself to the Court or Tribunal. If we can negotiate a fair and favourable settlement to avoid litigation, we will seek to do so.
- All that said, one sticks to one’s guns once the facts and arguments have been tested and found to be accurate. As everyone knows, litigation is often a matter of endurance. The Revenue authorities have deeper pockets than most taxpayers and it must be remembered they do not have to prove their case; they can sit still, do nothing and keep wearing the taxpayer out. We do not advise clients to “throw in the towel” if we think the case is fundamentally sound and the Revenue authorities are wrong. Tax disputes often take a while to sort out. We work for our clients to sort through the lengthly and confusing bureaucratic process of the Tax Office in order to achieve a sign-off on the correct outcome. We know that a correctly advised and determined taxpayer can win via successful negotiated settlement or successful litigation. Eventually the Revenue authorities have to give way on well-founded, well-argued taxpayer objections and appeals.
Some cases litigated by Dwyer Lawyers
Antonopoulos and Commissioner of Taxation [2011] AATA 431 (22 June 2011) (From Administrative Appeals Tribunal of Australia; 22 June 2011; 41 KB)
This case concerned deductibility of expenses incurred by a discretionary trust beneficiary. As a cautionary tale for trustees and their advisers drafting income distribution resolutions, the precise legal meaning of the phrase “due consideration” in a resolution was crucial to the Tribunal’s finding.
Swanbat Pty Ltd and Commissioner of Taxation [2013] AATA 891 (13 December 2013) (From Administrative Appeals Tribunal of Australia; 13 December 2013; 89 KB)
This case concerned an unsuccessful attempt by the Commissioner to raise an assessment to GST in order to recover a refund he paid out of time. He failed and his appeal to the Federal Court was abandoned by him. Instead, he had Parliament change the GST legislation for him to stop future successful claims (which opens up interesting questions in itself as to whether the new legislation really works).
Ward and Commissioner of Taxation [2015] AATA 138 (11 March 2015) (From Administrative Appeals Tribunal of Australia; 11 March 2015; 35 KB)
This was a test case on whether the Tribunal had jurisdiction to review a refusal by the Commissioner to exercise his discretion to make a determination in favour of a taxpayer seeking removal of excess non-concessional contributions tax. This case is the subject of an ATO Decision Impact Statement.