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Tax system integrity and directors’ obligations under the Corporations Act – A tale of two systems


The article examines the approach of various regulators and the law for corporations to have functional and effective corporate governance systems in operation for tax purposes. This includes an evaluation of the current corporate tax environment; and the approach of the ATO and ASIC to corporate governance processes. It finds the ATO has no direct remedies if such processes are not in place. This leads to a review of the duties of care and diligence and good faith under the Corporations Act to determine if breaches of these duties caused through no or inadequate governance processes that result in serious breaches of the tax laws can give rise to civil remedies under the Corporations Act. The conclusion is affirmative. Part of this review includes a determination as to whether the Commissioner should be given similar remedies as are available to ASIC under the Corporations Act and concludes this is not an optimal result.

Author profile

Kalmen Datt
Kalmen is a senior lecturer in the School of Taxation and Business Law at the University of New South Wales, Australia and teaches courses which include GST, CGT, International Tax and Tax Litigation. Kalmen was previously a barrister in South Africa and a solicitor/barrister in NZ and has been admitted as a solicitor in Australia. He has practiced in courts of first instance and appeal. He has completed courses in mediation and has appeared in mediations and arbitrations as counsel. Prior to immigrating to Australia, Kalmen was a solicitor with Inland Revenue (IRD) in NZ advising on tax issues and was an advisor to a specialist anti avoidance team at IRD. He assisted the School of Business at the University of Auckland in teaching various tax courses. Kalmen has successfully completed the Common Professional exams in the UK. - Current at 21 October 2019
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