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The use of extrinsic materials by the courts in the interpretation of taxation legislation

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Published on 01 Oct 15 by "THE TAX SPECIALIST" JOURNAL ARTICLE

While the law relating to the use of extrinsic materials, such as second reading speeches and explanatory memoranda, in statutory interpretation appears to be reasonably settled, nonetheless, both the taxpayer and the Commissioner of Taxation have sought to rely on extrinsic material to support a particular interpretation of legislation. The ability to use extrinsic material an have significant implications for the taxpayer or the Commissioner. It is therefore important to understand when it is appropriate to use this material. Significant costs can be incurred by a taxpayer in basing an argument on extrinsic material, only to discover that the courts will not consider such material.

This article reviews recent cases to determine to what extent these rules continue to apply and how and when tax practitioners can rely on extrinsic material to support a stance taken against the Commissioner or allow a practitioner to dispute the Commissioner’s use of such material.

Author profiles

Colleen Mortimer CTA
Colleen has been a lecturer at Curtin University since 1988. She currently teaches in a number of postgraduate tax units and has won many awards for her teaching. Prior to joining Curtin University she worked at the Australian Taxation Office and Arthur Andersen and operated her own business specialising in small businesses. Colleen is also a Senior Manager at BDO where she is responsible for the Learning and Development in both the Corporate and International tax area and the Business Services area. She also teaches for the Tax Institute in the CTA1 Foundations, CTA2A and CTA2B Advanced subjects, and CTA3 Advisory subjects. Colleen is also the CTA2B Advanced Subject Convenor - Current at 08 August 2018
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Rocco Loiacono
Rocco is a lecturer at the Curtin University Law School, where he teaches in the areas of property law, business law and taxation law. After graduating with a combined Law and Languages (Honours) degree, he worked for 10 years as a lawyer, most of those at national law firm Clayton Utz. Rocco completed his PhD in 2013. The area of research of the thesis is the difficulties associated with the translation of treaties across different legal systems, in particular, between common law and civil law. - Current at 01 October 2015

 

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