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The Commissioner’s obligation to make compensating adjustments for income tax and GST in Australia and New Zealand

Published on 01 Sep 18 by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE

Both Australia and New Zealand (NZ) have enacted general anti-avoidance rules (GAARs) for income tax and goods and services tax (GST) and the Commissioner may, if he/she believes the GAAR has been breached, issue a determination to negate the benefit the avoider or another taxpayer obtains from the transaction.

The Commissioner in Australia may, if he believes it is fair and reasonable to do so, make a compensating adjustment in favour of a party adversely affected by a GAAR determination to ensure income tax or GST is not levied twice on the same income or transaction. In NZ, the Commissioner is directed to ensure there is no double taxation for income tax purposes. With GST the legislation is silent.

It is the differences in approach between Australia and NZ that is the subject matter of this article. The authors conclude that the Australian regime although not free of difficulties does not present the same problems as does the NZ regime. In Australia the Commissioner must consider making a compensating adjustment and in exercising his discretion, may not use this discretion to impose a penalty on the disadvantaged taxpayer. In NZ, even though the legislation imposes an obligation of the Commissioner to make a compensating adjustment to avoid double taxation, it seems the courts have been reluctant to enforce this obligation. The authors suggest that even though the NZ GST legislation is silent on this point, the obligations of the Commissioner are the same as for income tax. In reaching these conclusions the authors consider the many problems arising in both countries with the right of taxpayers not to be double taxed after GAAR.

Author profiles

Mark KEATING
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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 26 July 2017
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