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Substance versus form in tax disputes - an analysis of recent developments

Publication date: 01 Sep 95 | Source: AUSTRALIAN TAX REVIEW

Pages: 171-189

The ability of a court to look through the legal form of a transaction and adjudicate a taxpayer's rights by reference to its underlying substance will often determine the outcome of a tax dispute. This article traces the development of the law in this area, from the Duke of Westminster case through to three recent Federal Court cases. The article concludes that in Australia, courts will continue to respect the strict legal form of a transaction, except when determining whether a receipt or outgoing is on revenue or capital account. In the latter situation, courts will resolve the nature of the payment by reference to the entire factual matrix in which it was made

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Author profile

Michael Flynn QC CTA-Life
Photo of author, Michael FLYNN Michael Flynn, CTA-Life, is a Barrister specialising in taxation and was National President of The Tax Institute in 2014. He was chair of the organising committee of the National Infrastructure Conference in 2015 and 2016. Michael has appeared before the Federal Court and the High Court in many cases on behalf of both taxpayers and the Commissioner. Michael has been a member of various committees of The Tax Institute for over 20 years, including Victorian State Council (he is a past State Chair) and National Council. He lectures in the postgraduate program at Melbourne University and is President of the Tax Bar Association. - Current at 10 February 2017
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