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Duty anti-avoidance provisions


Each state and territory of Australia has now adopted either a general anti-avoidance provision (GAP) applicable to all taxes and duties, or a more specific GAP applicable to duty or other taxes. Unfortunately, no two jurisdictions have identical duty GAPs, though there are similarities. This makes the consideration of GAPs more complex, given that transactions commonly involve assets in several jurisdictions, therefore requiring consideration of the legislation in several jurisdictions. This, the authors argue, is inefficient, serves no purpose, and gives no benefit.

This article provides an overview of the duty GAP in each jurisdiction, identifying the similarities and (more importantly) the differences between the models adopted by each jurisdiction. The discussion draws on recent income tax and GST GAP cases to assist in understanding the operation of the state and territory GAPs, and considers the special challenges that are represented when trying to apply GAPs in a duty context.

Author profiles

Sue Williamson CTA-Life
Sue is a partner at EY specialising in tax controversy. Sue has worked in tax for more than 25 years, including roles in major law firms and executive roles within the firms in which she has been a partner. Sue was the President of The Tax Institute in 2008, has been a member of several advisory boards, has participated in many consultative forums and lectures in the University of Melbourne Masters of Law program. Sue was a member of the instructing solicitor team working on the Placer Dome litigation. - Current at 26 June 2019
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Ada Lam
Ada Lam is a Senior Manager in Ernst & Young's Tax Controversy Practice. She has been involved in a wide range of tax advisory and transactional matters (including in relation to the transfer of intellectual property and other intangible assets). Ada has also conducted tax litigation at Administrative Appeals Tribunal and Federal Court level. - Current at 15 February 2012
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