Publication date: 15 Mar 17 |
Source: THE TAX INSTITUTE
Federal Court Judge questions Part IVA
Wednesday, 15 March 2017: The Hon Justice Logan RFD, a Judge of the Federal Court of Australia, today asked: “What is the point of having Part IVA in the Income Tax Assessment Act 1936?”
Speaking in Adelaide at the 32nd National Convention of The Tax Institute, Justice Logan questioned the role of Part IVA and whether alternatives, such as the doctrine of sham or the principle of fiscal nullity, may be just as useful in addressing the question of tax avoidance, rather than applying the prescriptive Part IVA rules.
Justice Logan alluded to a potential repeal of Part IVA and the enactment of the following in its place:
“For the avoidance of doubt, it is hereby declared that the United States doctrine known as judicial sham and the United Kingdom principle known as fiscal nullity apply to the construction and application of this Act.”
He said that “the position would remain that it is unnecessary to have regard to any anti-avoidance measure, doctrine or principle to deal with a transaction which no party to it intends to be genuine.”
Justice Logan concluded that “there is not a single Part IVA case to date which would have been decided any differently had the facts fallen for determination by the application of either the judicial sham doctrine or the fiscal nullity principle by virtue of the application of the substitution provision I have set out.”
In the Justice Graham Hill Memorial Lecture, Richard Gelski, FTI (Life) kicked off the program with his session on Law, Morality and Multinationals. Mr Gelski reconfirmed that morality is not part of the decision making process that judges/tribunal members engage in.
More highlights to come this week:
- Special Guest Speaker, Dr Gill Hicks AM, MBE
- Commissioner’s Address, Chris Jordan AO, Commissioner of Taxation
- Tax Adviser of the Year Awards
- VIP Presentation: Michael Andrew AO, Chair Board of Tax
- Miranda Stewart – Double Tax Treaties and the Multilateral Instrument
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The Tax Institute is Australia’s leading professional association and educator in tax. Its 12,000 members include tax agents, accountants and lawyers as well as tax practitioners in corporations, government and academia. The Tax Institute supports the tax profession through education and professional development and works to continually improve tax law and its administration.