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Stamp duty and payroll tax discretions paper


State tax legislation confers numerous discretions on the Commissioners, the exercise of which may determine whether any tax liability arises. An understanding of the scope of discretionary powers and the avenues for challenging the exercise of discretions will often be critical for both revenue officers and for practitioners advising clients affected by the exercise of discretionary powers. This paper covers:

  • what types of discretions exist in State tax legislation?
  • how do you identify a discretion - when does ‘may' mean ‘may' and not ‘shall'?
  • what constraints apply to Commissioners when exercising a discretion?
  • what protections exist for taxpayers before, during and after the exercise of a discretion?
  • avenues for challenging the exercise of a discretion
  • practical considerations for taxpayers and the Commissioner when dealing with discretions
  • should the use of discretions be encouraged?

Author profile

Michael Flynn QC CTA-Life
Photo of author, Michael FLYNN Michael is a Barrister at Owen Dixon Chambers West, specialising in taxation, and was National President of The Tax Institute in 2014. He is the author, with James Kessler, QC, of Drafting Trusts and Will Trusts in Australia (2nd edition, 2017). Michael has appeared in the Administrative Appeals Tribunal, the Federal Court and the High Court in taxation cases. Michael has been a member of various committees of The Tax Institute for over 20 years. - Current at 02 December 2019
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This was presented at Ninth Annual States' Taxation Conference .

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