Published on 01 Oct 12
by "THE TAX SPECIALIST" JOURNAL ARTICLE
Part 1 of the article examined some of the issues that can arise in a challenge to the exercise of the so-called “discretion” of the Commissioner to make a s 177EA determination. In Part 2, the discussion turns to the first-instance judgment in Mills v FCT and its analysis of the discretionary question, a case study which enables a fuller understanding to be gained of the issues covered in Part 1.
The view proposed is that the taxpayer in Mills had good grounds to challenge the Commissioner’s decision to issue a determination, and it is a pity and a loss that he did not press the point in the appeal. More generally, the discussion shows that there are opportunities aplenty to bring down s 177EA determinations by collateral attack, and that there is much to support Kirby J’s suspicion that “the Commissioner is afraid of the flood that cometh.”