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Developments in legal professional privilege paper


A recent UK Supreme Court judgment has confirmed that the common law right to claim legal privilege over legal advice attaches solely to advice provided by legal professionals, and can only be extended to other professionals by legislative enactment. The Commissioner of Taxation provides for some exceptions when exercising his statutory right to access taxpayers’ documents allowing certain documents prepared by external tax advisers, who are not legal practitioners, to remain confidential.

This paper covers:

  • an overview of when privilege applies
  • circumstances in which privilege is waived
  • how the accountants concession operates
  • how to deal with ATO questions requesting documents that may be privileged.

Author profile:

Toby Knight CTA
Toby is a Tax Partner at Allens. He practises in corporate and international tax with particular expertise in dispute resolution, audits, transfer pricing, research and development, and tax litigation. He advises on mutual agreement procedures, tax treaty and structuring issues in transfer pricing matters and has over 17 years of experience in acting for many leading companies in a wide range of significant audits and tax litigation. These have included disputes in relation to capital gains tax, complex restructures and tax consolidation, Part IVA, foreign exchange transactions, franking credits and the application of different transfer pricing methodologies. Current at 13 November 2013 Click here to expand/collapse more articles by Toby KNIGHT.

This was presented at Vic 1st Annual Tax Forum.

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