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Costs orders against the Commissioner of Taxation


The decision of the Full Court of the Federal Court in Clark's case in November 2011 concerned the ability of taxpayers to obtain a costs order, including an indemnity costs order, against the Commissioner of Taxation.

This article examines the decision in the context of relevant court rules and existing case law. The court confirmed that the Commissioner is subject to the same rights and obligations that any other participant in commercial litigation. As a result, offers of compromise need to be properly considered by the Commissioner. It is not enough for the Commissioner to claim that a costs order should not be awarded against him on the basis that he was complying with his own policies or procedures, or that indemnity costs should not be ordered against the Commissioner on the basis that he has duties of administration of the taxation regime, and an obligation to pursue questions that have a wider legal significance.

Author profile

Denis Barlin CTA
Denis is a Barrister at 13 Wentworth Selborne Chambers. He advises on taxes generally (both federal and state taxes), superannuation, equity and trusts, as well as asset protection. Denis also conducts disputes as an advocate in both state and federal tribunals and courts. - Current at 02 June 2015
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