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The ATO has published a Decision Impact Statement in relation to the Federal Court decision in International All Sports Ltd v FCT; Sportsbet Pty Ltd v FCT [2011] FCA 1027. This case also concerned offers of compromise under Order 23 of the Federal Court Rules and Calderbank offers.

As in Clark v FCT [2010] FCA 415, the Court rejected the Commissioner's argument that the proceedings were in "the public interest", which justified an ordinary order for costs against him rather than an indemnity order for costs. In particular, the Court ordered that costs incurred after 15 April 2011 (when the taxpayer made an offer of compromise) be on an indemnity basis.

Consistent with the Decision Impact Statements in relation to Clark (to be found here and here), the Commissioner maintains "that each offer of compromise made under Order 23 of the FCR or Rule 25 of the of the Federal Court Rules 2011, as the case may be, must be dealt with on its own merits and having regard to the particular facts and circumstances of each offer. For example, the question of whether a matter raises issues of public interest and importance may be a relevant consideration."


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