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The onus of proof following the Cassaniti decision


The Full Federal Court decision of Steward J (Greenwood J agreeing and Logan J concurring with additional reasons) in FCT v Cassaniti notably clarifies the law in relation to what is necessary for a taxpayer to discharge their burden of proof on review in a  tribunal or court. The practical effect of this clarification may be that taxpayers are more likely to succeed in meeting their burden of proof on review. For corporations, both large and small, individuals and small-to-medium enterprises, the commentary in the case provides an effective roadmap to assist them in discharging the burden of proof.

Author profile

Gareth Redenbach CTA
Gareth Redenbach, CTA, is a barrister practising in revenue law and has over 10 years of experience in tax matters. He has advocated in all trial divisions in Victoria as well as in the High Court, Full Federal Court and Victorian Court of Appeal. He has appeared for both taxpayers and the Commissioner and including for the successful taxpayer in the Full Federal Court decision on taxation of trusts in Lewski v Commissioner of Taxation (2017) 254 FCR 145 and for the successful Commissioner in the first domicile case decided post-Harding (Handsley v Commissioner of Taxation [2019] AATA 917). Prior to joining the bar, Gareth was in-house counsel for the Macquarie Group based in New York responsible for managing transfer pricing and international tax matters across the Americas region. Gareth was previously a Senior Associate at Minter Ellison focussed on tax controversy and began his career in the international tax department of PwC. Gareth is a Senior Fellow at the University of Melbourne teaching in their LLM program and also teaches in the Victorian Bar’s Readers’ Course on taxation matters. Gareth is the former Chair of the Corporate Section and Executive Committee member of the US Committee of Banking Institutions on Taxation. Gareth also regularly participates and speaks at TIA, OECD, IFA and other conferences. In 2016, Gareth was one of four tax lawyers under 40 globally invited to present on tax issues in the digital economy at the 70th Annual International Fiscal Association Congress in Madrid and is one of Australia’s two joint reporters on issues to do with the Multilateral Instrument to the 74th Annual International Fiscal Association Congress. - Current at 31 October 2019
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