Litigation Miscellaneous 2016

Is a statutory fiction necessarily a horror story for taxpayers?

Source: Taxation In Australia Journal Article

Published Date: 1 Oct 2016


Expert evidence is often relied on in taxation litigation, especially when provisions of the taxation legislation call for consideration of a hypothetical, such as a hypothetical transaction, sale or purchase price. Recent cases have highlighted that, in relation to these hypothetical situations, the usual procedures may have significant shortcomings. In three recent cases, expert evidence called by the taxpayers did not address the correct statutory question and therefore could not satisfy the taxpayer's burden, ultimately because in each case the taxpayer construed the provision in question differently from the court.

These cases are concerning because of the possible perception that the taxpayer did not have the opportunity to adduce evidence to address the correct statutory construction, and the inefficient use of resources in adducing and considering extensive evidence which was, in the final analysis, of little or no relevance. This article provides an overview of each of the three decisions and then proposes potential alternative approaches to using expert evidence more effectively and efficiently in tax litigation.

Sorry, this is subscriber only content.

To gain access to this material and much more - Subscribe Now.

(Note: Members can access Taxation in Australia journal articles without a Tax Knowledge Exchange subscription - please log in to access).

Already a Subscriber? Login now


The material is copyright. Apart any fair dealing for the purpose of private study, research criticism or review, as permitted under the copyright Act, no part may be reproduced by any process without written permission from The Tax Institute.

Unless expressly stated, opinions are not that of The Tax Institute, which accepts no responsibility for the accuracy of any of the information contained within it.

The Tax Institute
(ABN 45 008 392 372 (PRV14016))


The Tax Institute is a Recognised Tax Agent Association (RTAA) under the Tax Agent Services Regulations 2009. 

Copyright Statement

All materials provided on this site are protected by copyright and are owned by or licensed to TTI.

Except as expressly permitted by TTI or the copyright owner, any person or company who uses this site must not use, reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, the materials or any information, software or other content, in whole or in part, which is available through this site.


Litigation Miscellaneous 2016

Share this page