Miscellaneous 2017

Chevron and evidential preclusion

Source: The Tax Specialist Journal Article

Published Date: 1 Aug 2017


The Commissioner's side in the Chevron litigation had a big problem with a key part of their case: the ATO officer who signed the s 136AD determinations had no authority to do so. Did this mean that no valid determinations had been made? Or that determinations were made but were somehow wrong? Or that the determinations were correct but affected by an immaterial procedural error? Or, instead, was the error linked with substantive liability, as would make it reviewable for quantum in a tax appeal? It is noteworthy that, in administrative law contexts, a decision-maker having no power to make a decision is a very considerable thing, often resulting in invalidity. So how do things stand in the tax arena? It turned out that s 177 was able to work its magic and protect the error from full scrutiny, and accordingly the ATO was spared some embarrassment.

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Miscellaneous 2017

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