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Editor’s note: Senior Tax Counsel Bob Deutsch’s comments on the Shord judgment can be found in TaxVine 45 (24 November 2017)

MEMBER 269 writes: 

Noting the further comments by Professor Deutsch on the Shord case and conduct of the Tax Office and being a model litigant, the majority are taking a softer approach. 

The Tribunal website has some papers available, one is under the name of The Hon. Justice Garry Downes AM, (former President of Tribunal and former Federal Court judge) entitled ‘The Obligation to Assist, Model Litigants in Administrative Appeals Tribunal’, Proceedings Seminar, dated 26 August 2009. In regard to the obligation of the Tax Office to assist the AAT he states: 

“I think it imposes an obligation which has parallels to the obligation of counsel assisting an enquiry. The ultimate object must never be the defence, for the sake of it, of the decision under review …. Further, the evidence adduced should be evidence which will assist, in whatever direction it points, and not simply evidence to support the decision under review …. The obligation to assist has a different basis. It reflects the closeness of the role of the Tribunal to the original decision maker. It goes much further than the model litigant rules.” 

If the Tax Office’s obligation to assist the AAT goes further than the model litigant rules, and the Tax Office didn’t ‘assist’ the Tribunal after it handed down its decision (it left the Tribunal decision in the face of its concession at the Tribunal and in the face of the objection assessments, that Shord was an employee), is the Tax Office culpable for not assisting a correction? As the Tax Office’s own objection decision had Shord as an employee to give him some exemptions, the Tribunal might have an excuse of getting off on the wrong foot, but the Tax Office must have known what it was doing. It has either allowed a decision to continue on the wrong footing, or was simply incompetent in recognising the matter. Either way it is the individual taxpayer that has had to bear the burden and stress. The example sounds all too familiar to the past.


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