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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 Flynn, CTA-Life, is a Barrister specialising in taxation and was National President of The Tax Institute in 2014. He was chair of the organising committee of the National Infrastructure Conference in 2015 and 2016. Michael has appeared before the Federal Court and the High Court in many cases on behalf of both taxpayers and the Commissioner. Michael has been a member of various committees of The Tax Institute for over 20 years, including Victorian State Council (he is a past State Chair) and National Council. He lectures in the postgraduate program at Melbourne University and is President of the Tax Bar Association. - Current at 10 February 2017
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This was presented at Ninth Annual States' Taxation Conference .

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