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Evidence: Defending your position paper


Effective gathering and management of evidence is fundamental to defending a taxpayer’s position in the course of any audit or dispute with the Commissioner of Taxation. In an environment where the Commissioner is gathering evidence with increasing sophistication, taxpayers need to carefully consider the status and maintenance of evidence supporting key positions at the time of execution of significant transactions, and at each stage of any later dispute with the Commissioner. This paper addresses some of the steps involved in effective and efficient evidence management, including:

  • identifying the forms of evidence required to supportpositions adopted
  • managing digital and non-digital records
  • effectively using opinion evidence provided by experts
  • closing gaps and obtaining contemporaneous statements from relevant personnel
  • obtaining relevant tax technical advice.

The paper also considers standards of evidence required at different stages of a dispute and examines some recent examples where evidence retained was the critical difference between the taxpayer ultimately succeeding or failing.

Author profile

Daniel McInerney QC
Daniel McInerney, CTA, is one of Australia’s leading taxation barristers. Since being called to the Bar in 2007 he has appeared in many significant tax cases and is regularly called upon for his advice on complex tax issues by taxpayers and the Australian Taxation Office. - Current at 09 July 2020
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This was presented at Vic 1st Annual Tax Forum .

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Evidence: Defending you position

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