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Richardson, Tessa --- "An Analysis of the Proposed Mandatory Disclosure Regime in Australia" [2017] WAStuLawRw 5; (2017) 1 Western Australian Student Law Review 81


Tessa Richardson[*]

Taxation Law—Mandatory Disclosure Regime—Tax Avoidance——Disclosure Rules—Organisation for Economic Cooperation and Development—Tax Planning

The Australian Government has indicated its intention to implement a mandatory disclosure regime in Australia as a means of combatting tax avoidance. Australia currently has several anti-avoidance measures in place that aim to minimise tax avoidance. This article argues that the enactment of a mandatory disclosure regime is not necessary given Australia’s existing anti-avoidance measures. However, on the assumption that a mandatory disclosure regime will almost certainly be implemented in Australia, this article considers the appropriate structure and design of the regime. It concludes that any mandatory disclosure regime enacted should be limited in its approach and targeted at specific taxpayer cohorts to preclude duplication with existing rules. The effect of the introduction of a mandatory disclosure regime on the practice of revenue lawyers in Western Australia will also be briefly considered.


The adoption of clear and effective anti-avoidance strategies in taxation law is imperative in combatting tax avoidance. The introduction of mandatory disclosure regimes (‘MDRs’) was one measure suggested by the Organisation for Economic Cooperation and Development (‘OECD’) in its final report on Base Erosion and Profit Shifting. Such a regime, the OECD suggested, would combat tax avoidance and aggressive tax planning schemes by large multinationals in OECD countries. In the 2015/16 Budget, the Australian Government announced it would implement a MDR. Given that a MDR will almost certainly be implemented, this article examines the practicalities and implications of a disclosure regime and considers how it should be structured in light of existing anti-avoidance measures. However, this article also argues that a MDR is not essential, given the plethora of existing anti-avoidance measures in place in Australia. Finally, the effect of the introduction of a MDR on lawyers’ provision of taxation law advice will be briefly considered.


A MDR is a set of rules requiring taxpayers, advisers, and/or promoters to disclose information to a revenue authority about certain defined activities.[1] MDRs provide the tax administration with early information regarding potentially aggressive or abusive tax planning schemes, and identify promoters and users of those schemes.[2] Aggressive tax planning refers to tax planning that goes beyond the policy intent of the law and involves deliberate approaches to avoid tax.[3]

Ultimately, MDRs seek to minimise tax avoidance, a practise which threatens the revenue base. Tax avoidance refers to a misuse or abuse of the law driven by the exploitation of structural loopholes in the law to achieve tax outcomes that were not intended by Parliament.[4] MDRs operate by providing real time information to revenue authorities, which can then be used to counteract tax avoidance schemes before they have the potential to undermine the integrity of the revenue base.[5]

A The kinds of activities targeted by MDRs

MDRs target tax avoidance schemes where the main purpose of the scheme is obtaining a tax benefit that would not otherwise be obtained. They require disclosure by specified persons of arrangements that fall under certain hallmarks. These hallmarks are designed to reflect features that are typically common of tax avoidance transactions,[6] and will be explained in further detail in Part IV of this article. The implementation of hallmarks as triggers for the disclosure requirements under a MDR will require the striking of a balance between ensuring information is clear to taxpayers in terms of the circumstances in which disclosure is required, without placing undue compliance burdens on taxpayers.

B Excluded activities

Activities excluded from disclosure under a MDR would naturally be any arrangement that doesn’t fall under one of the hallmarks. An example of a tax planning arrangement that clearly should not trigger MDR requirements is a typical family tax planning arrangement between a husband and wife.[7] This approach would be consistent with current anti-avoidance laws in Australia; pt IVA of the Income Tax Assessment Act 1936 (Cth) (‘ITAA36’) is not applicable to this type of arrangement.[8] Presumably, any introduced MDR would be inapplicable to family tax planning arrangements in the same way, seeing as it seeks to protect the revenue base, which is most vulnerable to avoidance acts of large entities and high-net worth individuals.


The availability of information on a timely basis under a MDR allows governments to quickly identify risk areas with respect to tax avoidance. MDRs do not immediately impact the tax treatment of various arrangements. However, they ensure that administrators can quickly identify and counteract tax avoidance schemes before they can have a major effect on the revenue base.[9] The implementation of MDRs involves a policy trade-off between certainty and flexibility. Rules must be clear enough for taxpayer application, but must also be flexible enough to allow revenue authorities to respond to new or emerging risks. This poses a problem when it comes to drafting the rules: the more flexible the rules are, the more uncertain the application of the rules become for taxpayers. However, greater flexibility will arguably allow for a more responsive regime that is better at combatting tax avoidance.

A Advantages and disadvantages of the proposed MDR

A MDR reduces the time it takes to identify new innovative aggressive tax planning by providing ‘real time intelligence’, which allows revenue authorities to quickly close loopholes and prohibit tax avoidance.[10] Access to fast and accurate information allows revenue authorities to remain ahead of avoidance transactions. Consequently, the opportunity arises for faster dispute resolution with respect to contentious transactions resulting from the decreased time taken to identify tax avoidance.[11] The disclosure of tax avoidance schemes also allows for the design and drafting of new specific anti avoidance rules (‘SAARs’), as disclosure provides the government with more specific information about emerging areas of risk.

Requiring disclosure of taxpayers, as opposed to leaving it to the Australian Taxation Office (‘ATO’) to investigate potentially-avoidant schemes, may reduce the ATO’s costs of combatting tax avoidance by allowing resources that would otherwise be used for investigation to be redirected to other areas.[12] Even if costs are not reduced, funds that would have been used for investigation may be used more efficiently elsewhere. The requirement for taxpayers to disclose has the potential to decrease routine audits as a result of the provision of additional information, which in turn allows for more targeted audits.[13] Ultimately, this could save government expenditure.

A MDR may also have the advantage of deterring taxpayers from engaging in tax avoidance. If the disclosure of questionable tax avoidance schemes is required, there is a reduced likelihood that taxpayers will participate in aggressive tax planning structures.[14] Having said this, there are already existing disclosure rules in Australia, so the success of this deterrent effect may be limited given the fact that taxpayers still engage in tax avoidance despite the existing prohibitions. This argument is expanded below in Part V.

There are a number of disadvantages associated with the proposed MDR, especially from the perspective of taxpayers. A disclosure regime may increase costs associated with tax planning, as taxpayers may be required to engage a tax professional in order to determine whether disclosure provisions are applicable to them.[15] In a similar vein, a disclosure regime may result in increased uncertainty with regard to whether or not provisions apply, particularly in light of how complex taxation law already is in Australia.[16] This has the potential to impact ordinary commercial transactions, as the MDR may deter taxpayers from entering into legitimate transactions for fear of having to disclose the scheme.[17]

The proposed MDR may also give rise to conflict between disclosure rules and legal professional privilege. A taxpayer may be required to disclose a document under a MDR which would otherwise fall under legal professional privilege; it may be necessary to specify whether a MDR intends to abrogate privilege.[18] Finally, in ascertaining that a tax avoidance transaction has taken place, the disclosure that a transaction has taken place would logically lead to the conclusion that it also constitutes an admission that the general anti-avoidance rules (‘GAARs’) apply.[19] This may be remedied by a clear statement in the legislation that disclosure does not constitute an admission that the scheme is an avoidance scheme, as is provided in the Canadian legislation.[20] However, as the regime would presumably be directly linked to the GAAR, it is inevitable that a statement in the legislation would not entirely alleviate the concern of taxpayers.


A Who should disclose?

Based on existing MDRs in other jurisdictions, there are two options as to who should bear the burden of disclosure pursuant to a MDR: the promoter of the scheme, or both the promoter and the taxpayer/tax agent.[21] Either option should place a disclosure obligation on the promoter of a scheme with a promoter defined as a person, in the course of a relevant business, who is responsible for the design, marketing, organisation or management of a scheme or who makes a scheme for implementation by another person.[22] This will reduce the likelihood of tax professionals promoting schemes which may constitute tax avoidance, and thus reduce the prevalence of research into and knowledge about such schemes.

Both Canada and the United States (‘US’) place a disclosure obligation on the promoter and the taxpayer. In Canada, disclosure by one of these parties will satisfy the obligation of each party. On the other hand, in the US, taxpayers must provide information about transactions regardless of whether the promoter has already disclosed the transaction.[23]

Alternatively, the primary obligation to disclose may fall firstly on the promoter of a scheme. This approach has been adopted in the United Kingdom (‘UK’), South Africa, Ireland and Portugal. There are some circumstances where this will change and the client or user of a scheme may be required to disclose under the rules. The three key circumstances where this will occur are where the promoter of a scheme is outside the State; where there is no promoter; or where the promoter is a legal professional and asserts legal professional privilege to prevent the requirement of disclosure.[24]

The application of a MDR in Australia should be targeted and should avoid any duplication. Therefore, the primary obligation should fall on promoters or tax agents, and not the taxpayer, given that a promoter who designs and sells a scheme will have more information about a relevant scheme than the taxpayer, and is more likely to encourage tax avoidance by selling that scheme to clients.[25] Where there is no promoter, this obligation should then fall on the tax agent, and lastly on the taxpayer if there is no tax agent. To avoid duplicity, where the scheme has already been disclosed by the promoter, the taxpayer has no further obligation.

B What arrangements should be targeted

Under existing MDRs in OECD countries, a transaction is reportable if it falls within the descriptions or hallmarks set out in the regime.[26] Under some regimes, a threshold test is first applied to schemes before they are assessed against the relevant hallmarks, in order to filter out irrelevant disclosures.[27] A threshold test may consider whether the features of an avoidance scheme are present in the transaction, or whether obtaining a tax advantage was a main benefit of entering into the scheme.[28]

Hallmarks play a pivotal role in the effectiveness of any MDR. They act as tools to identify the features of schemes of interest to tax administrators.[29] Hallmarks aim to both capture new and innovative tax planning arrangements, and target known vulnerabilities in the tax system.[30] To determine which hallmarks should be incorporated into an Australian MDR, it is useful to examine the adoption of key hallmarks in countries with a regime in place.

Under the Disclosure of Tax Avoidance Schemes (‘DOTAS’) regime in the UK, a number of hallmarks focus on the desire by the promoter or scheme user to keep the scheme arrangements confidential from other promoters or the revenue authority.[31] A confidential scheme is one offered under conditions of confidentiality, indicating that the scheme is new or innovative.[32] Confidentiality also allows a promoter to sell the same scheme to multiple taxpayers. Similarly, Canada has a confidentiality hallmark providing that disclosure must take place where an advisor or promoter requires confidential protection in respect of a scheme.[33]

A premium fee clause is a common hallmark, designed to capture schemes sold on the basis of the tax benefits that accrue under them.[34] Under the UK regime, the hallmark attempts to capture arrangements by which promoters may obtain a premium fee for the scheme,[35] which could be attributable to the tax advantage. The analogous Canadian hallmark is satisfied where an advisor or promoter is entitled to a fee that is attributable to the amount of a tax benefit from the transaction, contingent on the procurement of a tax benefit.[36]

The hallmarks discussed above are ‘generic’ hallmarks. They increase the amount of reportable transactions by casting a wide net, in contrast to more specific hallmarks. They are useful in capturing new and innovative transactions which specific hallmarks have difficulty capturing due to their limited application.[37] Other generic hallmarks that are used in existing MDRs in other jurisdictions include the presence of contractual protection mechanisms whereby parties agree on an allocation of risk in consideration of the scheme failing, and standardised tax product, intended to capture widely-marketed schemes.[38]

Whilst the broad application of these hallmarks may be useful in detecting new and innovative schemes, it is likely that their application will result in ordinary business transactions finding themselves subject to disclosure under the hallmarks. Therefore, if the aforementioned hallmarks are to be included in a disclosure regime, they should be clearly and specifically drafted in order to narrow their application and avoid any unnecessary disclosure. Of course, there is still a balance to be achieved; if the hallmarks are drafted too narrowly, they may not capture novel transactions. This will certainly pose a challenge for the legislature when drafting the MDR.

The use of specific hallmarks may be more effective in order to target particular high-risk areas. Specific hallmarks are far narrower than the generic hallmarks described above, and specify certain aggressive or abusive transactions.[39] Provided that specific hallmarks are not drafted too restrictively, enabling promoters to structure arrangements around these hallmarks, they are a useful tool in combatting anti-avoidance.

A loss scheme hallmark is an example of a specific hallmark in place in some OECD countries.[40]The hallmark triggers disclosure requirements where a scheme is designed to provide all or some of the individual participants with losses that will be used to reduce their income tax or capital gains tax liabilities or to generate a repayment.[41] A threshold may be placed on the loss, with the US hallmark providing that a loss that equals or exceeds an amount ranging from US$50 000 to $10 million in a single taxable year will constitute a loss transaction.[42]

Other specific hallmarks currently utilised in other OECD jurisdictions include:

• tax advantages gained from leasing transactions;

• employment schemes;

• converting income schemes;

• schemes involving entities located in low-tax jurisdictions, arrangements involving hybrid instruments; and

• transactions with significant book-tax differences.[43]

In the US, any ‘listed transaction’ or ‘transaction of interest’ must be disclosed.[44] This may include any transaction that is the same or substantially similar to one that has already been identified as a tax avoidance transaction, or a transaction that has the potential for tax avoidance.[45] In addition to some broader hallmarks acting to capture new types of avoidance transactions, specific hallmarks may be suitable for an Australian MDR. Those hallmarks could include the features of those transactions that have already been identified by the ATO as features of tax avoidance schemes, such as those features currently identified in taxpayer alerts.

C The discretion of the Commissioner of Taxation

Under the MDR proposed in the Government’s discussion paper, it is suggested that the Commissioner of Taxation (‘Commissioner’) would have broad discretion to determine which aggressive tax planning schemes require disclosure, allowing the ATO to respond quickly and flexibly to new market developments. However, if the powers of the Commissioner are too broad in determining what constitutes an ‘aggressive tax planning scheme’, the MDR will likely be less effective; the amount of information disclosed will be excessive and resources will be wasted sifting through unnecessary disclosures. In addition, ever-changing disclosure requirements at the whim of the Commissioner may make compliance with those requirements too challenging for taxpayers.

It is arguable that the Commissioner should be required to have substantive evidence regarding a tax arrangement that is intended to fall within the disclosure requirements before she or he exercises her or his discretion. This would regulate the exercise of the Commissioner’s discretion to ensure that compliance is not unduly burdensome for taxpayers. It would mean that tax advisers and taxpayers could determine, with relative ease, whether they are involved in arrangements obliging them to make a disclosure to the Commissioner.

D The implications of early disclosure

The Government has proposed that disclosure should not be required earlier than 90 days from the date that the ATO publishes a notice providing that a scheme is reportable.[46] It is essential to balance the desire for early disclosure with the need for rules that are practical for tax advisers and taxpayers. It is not practical to instantly require disclosure from taxpayers once a scheme is made reportable by notification from the ATO. If disclosure was required within a short prescribed period from when the ATO publishes a notice, it is likely that this would result in unnecessary disclosures where a planned scheme is never actually implemented. The proposal of the Government that disclosure will not be required earlier than 90 days from the publication of a notice will therefore serve to reduce unnecessary disclosure. Once a scheme is entered into, a prescribed period should be in place outlining a time period for disclosure before a taxpayer is subject to penalty.

If the rules do require disclosure within a certain period after a scheme is implemented, it is necessary that there be some form of incentive or penalty to ensure that disclosure actually occurs. For example, in Ireland, if a taxpayer has engaged in a tax avoidance transaction, disclosure of that transaction within 90 days of the start of the transaction will result in the avoidance of a 20 per cent surcharge on the payment to the tax administration of the tax avoided.[47] Alternatively, in order to provide some incentive, early disclosure could result in the taxpayer receiving a tax benefit of some kind.

However, these incentives only have practical application when disclosure is required by taxpayers. With regard to promoters, some form of deterrent should exist in order to incentivise early disclosure. The most obvious deterrent would be the imposition of a penalty for non-disclosure within the prescribed disclosure period. This could be enforced in a similar way to penalties under the promoter penalty regime.[48] However, given the existence of promoter penalties, by disclosing aggressive tax planning schemes promoters open themselves up to self-incrimination, so perhaps a non-disclosure penalty would not provide enough incentive. A reward of immunity in exchange for information may be the only way to provide incentive to disclose to promoters; this way, the ATO could prevent the implementation of avoidant schemes by receiving early information, and the proposed participants of that scheme would not suffer from their disclosure of an avoidant scheme.


Australia currently has a number of measures available to assist in combating tax avoidance, including SAARs, GAARs, promoter penalty regimes, and existing disclosure requirements.

Once particular tax avoidance arrangements have attracted the attention of the ATO, SAARs are relied on to prohibit their effectiveness and prevent the future use of those avoidance arrangements. SAARs currently target a number of different features of tax avoidance, including:

• prepayment schemes;[49]

• tax deferral schemes;[50]

• expenditure recoupment schemes;[51]

• payments to related entities;[52] and

• alienation of personal services income.[53]

The general anti-avoidance provisions in pt IVA of the ITAA36 act as a blanket prohibition on tax avoidance, often referred to as provisions of last resort. It applies to an arrangement where a taxpayer obtains a tax benefit from a scheme that would not have been available if the scheme had not been entered into, and if it can be objectively concluded that the scheme was entered into for the dominant purpose of obtaining the tax benefit.[54] Where a tax benefit has been obtained by a taxpayer in connection with a scheme to which pt IVA applies, s 177F gives the Commissioner the power to cancel that benefit and make compensating adjustments to the assessments of other taxpayers as required.[55] An administrative penalty may be imposed where a taxpayer attempts to reduce its tax-related liabilities through a scheme.[56]

The promoter penalty regime aims to deter the promotion of tax avoidance schemes by imposing harsh penalties on promoters of tax exploitation schemes.[57] An entity will be liable for any conduct that results in the promotion of a tax exploitation scheme. If such conduct is engaged in, the promoter may be ordered to pay a maximum of 5000 penalty units for an individual, or 25 000 penalty units for a corporation, in addition to twice the consideration received in respect of the scheme.[58] Currently, one penalty unit is equal to $180.[59]

Australia already requires eligible taxpayers to complete limited disclosures in the form of reportable tax positions schedule (‘RTP schedule’) and an international dealings schedule (‘IDS’) as part of the lodgement of a company tax return. The RTP schedule requires large businesses that meet certain criteria to disclose information as a part of their annual tax returns, including, with respect to specified reportable transactions, a description of the consequent tax position and the rationale behind the tax treatment of the position.[60] A transaction is reportable where proceeds exceed $200 million.[61] The IDS imposes detailed reporting requirements on entities that have international dealings greater than $2 million or an interest in a foreign branch, subsidiary or trust, or an offshore banking unit adjustment.[62]


As outlined above, there are already a number of regimes in place to combat tax avoidance in Australia. The key difference that distinguishes a MDR from the current mechanisms is the provision of real time intelligence. A MDR is attractive in that the provision of information regarding avoidance schemes before they are implemented allows the ATO to shut down such schemes before they negatively affect the revenue base. Whilst the current regimes in place do not provide real time intelligence in the way that MDRs propose to do, there are sufficient measures in place to gain information after the lodgement of tax returns.

It is not entirely practical to require disclosure before a scheme is actually implemented, and as such, the regime will not be commercially practicable. The disadvantages of a disclosure regime outweigh the advantages. An Australian MDR would give rise to unnecessary compliance costs for taxpayers who are already required to make disclosures. Additionally, the influx of information under a regime may actually increase the cost of enforcement for the ATO and, as a result, increase costs for taxpayers.

Promoters of tax avoidance schemes are already subject to penalties. Given that promoters continue to promote these schemes despite the knowledge that such stringent penalties apply, it cannot be guaranteed that a promoter would comply with their obligations under an MDR, or be deterred from promoting aggressive tax planning schemes. Even if strict penalties were imposed under the regime for non-disclosure, it is unlikely that this would provide sufficient incentive for disclosure. By disclosing an avoidance scheme, promoters will effectively be admitting to a breach of the anti-promoter regime.[63] Consequently, promoters would have no desire to comply with their obligations under a MDR, therefore undermining the effectiveness of the proposed regime.

A potential issue with the effectiveness of a MDR can be demonstrated by consideration of the offence of speeding on the road in a car. If you speed and get caught, you are subject to a penalty. Under current anti-avoidance laws, if you enter into or promote a tax avoidance scheme and get caught, you are subject to penalty. If a regime were enacted requiring drivers to make mandatory disclosure of times that they sped or drove recklessly, they are effectively admitting to a crime. If there is no certainty that you would be caught and punished if you did not comply with the disclosure rules, why would you make a disclosure that incriminates you? The same rationale applies to the disclosure of a tax avoidance regime under a MDR. There is nothing to guarantee that tax advisers, promotors and/or taxpayers would be caught for not making a disclosure under a MDR, and a lack of compliance might even be provoked by a desire of taxpayers, tax advisers and/or promoters to avoid being subjected to penalties under the SAARs and GAARs as a result of their own disclosure.

However, despite the persuasiveness of the argument that a disclosure regime is not necessary in Australia, the Government’s discussion paper indicates that a MDR will almost certainly be implemented. There are some benefits to this, such as providing global consistency in line with the OECD’s proposal that all countries implement a MDR. This will assist in combatting international tax avoidance, an increasingly important issue in light of the rise of the multinational enterprise. The implementation of a comprehensive disclosure system would assist in ensuring that similar rules apply to taxpayers operating within multiple jurisdictions, which is increasingly common due to globalisation.

The success of MDRs in other jurisdictions[64] should not be taken as indicative of the success of a potential MDR in Australia; our circumstances are different to that of other jurisdictions, and a MDR should be drafted accordingly. The UK, for example, had no GAARs in place prior to implementing a MDR. Therefore, a MDR must be tailored to Australia’s circumstances, noting our existing disclosure and anti-avoidance regimes, in order to avoid any duplication. Ideally, the regime should be more targeted and narrow in its approach to take account of our existing disclosure rules and to make the rules commercially practicable.


The final section of this article briefly flags what the introduction of a MDR might mean for lawyers, and revenue lawyers in particular, with a focus on Western Australia.

Under r 48 of the Legal Profession Conduct Rules 2010 (WA), a legal practitioner must not promote or market a tax scheme or arrangement which has the predominant purpose of tax avoidance by the exploitation of revenue law. However, if governed by a retainer, a practitioner must give advice on tax planning as requested by the client.[65] The difficulty in these rules arises in distinguishing between tax avoidance and tax planning. The enactment of a MDR would have no impact on solicitors in this context, as practitioners already have an obligation not to promote tax avoidance. However, it is worth noting that the line between tax avoidance and tax planning is not easily drawn, which presents an issue for lawyers advising on tax.

Whilst a lawyer cannot promote a tax avoidance scheme, if a client seeks advice on an avoidance scheme, the practitioner must provide this in line with their duty to their client.[66] However, as a result of this, issues arise where a lawyer is given information by a promoter regarding a scheme, in order to provide advice to their client. In this situation, the information provided would be protected by legal professional privilege, as it directly relates to the advice given.[67] Communications that fall within legal professional privilege are protected from all forms of compulsory disclosure.[68] This raises the question of the applicability of mandatory disclosure rules where information is already protected from disclosure. In order to circumvent this, where legal professional privilege exists, the disclosure obligation may fall on the scheme user, or a client may waive privilege, in which case disclosure will remain with the promoter.[69]


A disclosure regime is not an essential addition to Australia’s anti-avoidance measures, as those already in place provide sufficient means of combatting tax avoidance. This article argues that if a regime were to be implemented, the structure of MDRs in other OECD countries, as discussed, do not complement the existing anti-avoidance laws in Australia. The Government’s proposal will likely result in a duplication of anti-avoidance measures, resulting in unnecessary compliance costs and an unnecessary burden on taxpayers. Further, the structure of the proposed MDR has the potential to result in self-incrimination for any promoter or taxpayer that makes a disclosure, and given the penalties under the GAARs and the promoter penalty regime, this may impact the effectiveness of a MDR in Australia. Given that it is likely that Australia will implement a MDR, the regime should be narrow in its approach and targeted towards specific taxpayer cohorts in order to preclude duplication with existing rules.

[*] Tessa is a final year Bachelor of Laws student at Curtin University.

[1] Nicole Wilson-Rogers and Dale Pinto, ‘A mandatory information disclosure regime to strengthen Australia’s anti-avoidance income tax rules’ (2015) 44 Australian Tax Review 24, 25.

[2] Organisation for Economic Cooperation and Development (‘OECD’), OECD/G20 Base Erosion and Profit Shifting Project: Mandatory Disclosure Rules, Action 12 – 2015 Final Report (2015) 9.

[3] Australian Taxation Office, Taxpayer Alerts, PSLA 2008/15, 28 June 2012, [4].

[4] Australian Government Treasury, ‘Final Report of the Review of Business Taxation, A Tax System Redesigned’ (Commonwealth, July 1999) 6.2(c).

[5] Wilson-Rogers and Pinto, above n 1, 25.

[6] Wilson-Rogers and Pinto, above n 1, 33.

[7] For example, where a husband and wife conduct a business in a partnership and share equally the profits and losses, irrespective of whether one party performs the majority of the work, allowing income to be divided equally between the partners.

[8] Australian Taxation Office, ‘Part IVA: the general anti-avoidance rule for income tax’ (Commonwealth, December 2005) 4.

[9] Ibid.

[10] Wilson-Rogers and Pinto, above n 1, 36.

[11] Ibid 37.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid 38.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Income Tax Act, RSC 1985, c 1, 237.3(12).

[21] OECD, above n 2, [61].

[22] Ibid box 2.2.

[23] Ibid [63].

[24] Ibid [68]–[70].

[25] Ibid.

[26] OECD, above n 2, [79].

[27] Ibid [79]–[80].

[28] Ibid.

[29] Ibid [91].

[30] Ibid.

[31] Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2006 (UK) SI 2006/1543, regs 6-7.

[32] OECD, above n 2, [95].

[33] Income Tax Act, RSC 1985, c 1, 237.3(1).

[34] OECD, above n 2, [97].

[35] Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2006 (UK) SI 2006/1543, reg 8.

[36] Income Tax Act, RSC 1985, c 1, 237.3(1).

[37] OECD, above n 2, [132].

[38] Ibid [93].

[39] OECD, above n 2, [119].

[40] This is in place in the United States, the United Kingdom, Canada, Ireland and Portugal.

[41] OECD, above n 2, [120].

[42] Ibid.

[43] Ibid [122]–[128].

[44] Ibid [129]–[130].

[45] Ibid.

[46] Commonwealth, OECD Proposals for Mandatory Disclosure of Tax Information Discussion Paper (May 2016) 17.

[47] OECD, above n 2, [74].

[48] Taxation Administration Act 1953 (Cth) sch 1 div 290-50.

[49] Income Tax Assessment Act 1936 (Cth) s 82KJ.

[50] Ibid s 82KK.

[51] Ibid s 82KL.

[52] Income Tax Assessment Act 1997 (Cth) s 26-35.

[53] Income Tax Assessment Act 1936 (Cth) pt III div 6A.

[54] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404, 421–2 applying Income Tax Assessment Act 1997 (Cth) s 177D.

[55] Robin Woellner et al, Australian Taxation Law (Oxford University Press, 26th ed, 2016) [25-6000].

[56] Taxation Administration Act 1953 (Cth) sch 1 sub-div 284-C.

[57] Ibid sch 1 div 290-50.

[58] Ibid sch 1 div 290-50(4).

[59] Crimes (Taxation Offences) Act 1980 (Cth) s 4AA.

[60] Wilson-Rogers and Pinto, above n 1, 35.

[61] Ibid.

[62] Ibid.

[63] Taxation Administration Act 1953 (Cth) sch 1 div 290-50.

[64] For example, the UK’s DOTAS has eliminated over £12 billion in tax avoidance schemes.

[65] See Hawkins v Clayton (1988) 164 CLR 539.

[66] Ibid.

[67] LexisNexis, Halsbury’s Laws of Australia (at 24 August 2015) 250 Legal Practitioners, ‘1 Lawyer-Client Retainer’ [250-2525].

[68] Ibid.

[69] OECD, above n 2, [70].

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