Source: Australian Tax Forum Journal Article
Published Date: 1 Oct 2010
In 2008, the Australian Law Reform Commission indicated that consideration should be given to extending legal professional privilege in tax matters to the wider tax profession, rather than restricting it only to advice from the legal profession, as is currently the case. In considering the form that the recommended extension should take, the ALRC canvassed the approached in other comparable jurisdictions, focusing mainly on New Zealand's non-disclosure right. An alternative model mentioned, but not analysed in great detail, is the United States' tax adviser's privilege, which differs primarily from the New Zealand rule in that the former imports the common law privilege into statute, compared with the latter's creation of a separate statutory right.
This paper analyses the United States' rule with a view to assessing its suitability for Australia. The conclusion reached is that the general premise is suitable for Australia if the premise for an extension is to achieve uniformity of treatment for tax advice, regardless of the adviser's professional association. The limitations written into the United States' rule, though, should not be replicated in Australia, since these aspects of the tax adviser's privilege undermine the objective of identical treatment (since these limitations do not apply to the common law), also creating a number of practical problems.
More by Keith Kendall
Everett assignments and the Commissioner's professional practice guidelines - Presentation 17 Jul 2018
Everett assignments and the Commissioner's withdrawn guidelines - Paper 17 Jul 2018
Effective disclaimers - Journal 01 Feb 2018
Whose sham to prove? - Millar in the Full Federal Court - Journal 01 Sep 2016
The SBT and agency law " is tax law an island? - Journal 01 Dec 2008
FCT v Citylink Melbourne Ltd - When is expenditure incurred? - Journal 01 Oct 2006
Black hole expenditure - Journal 01 Jul 2006
The structural approach to tax avoidance in Australia - Journal 01 Jun 2006
TR 2005/23 - capital and revenue gains for listed investment companies - Journal 01 Mar 2006
Sorry, this is subscriber only content.
To gain access to this material and much more - Subscribe Now.
(Note: Members can access Taxation in Australia journal articles without a Tax Knowledge Exchange subscription - please log in to access).
Already a Subscriber? Login now
Already a Subscriber? Login now
Details
The material is copyright. Apart any fair dealing for the purpose of private study, research criticism or review, as permitted under the copyright Act, no part may be reproduced by any process without written permission from The Tax Institute.
Unless expressly stated, opinions are not that of The Tax Institute, which accepts no responsibility for the accuracy of any of the information contained within it.
The Tax Institute
(ABN 45 008 392 372 (PRV14016))
("TTI")
The Tax Institute is a Recognised Tax Agent Association (RTAA) under the Tax Agent Services Regulations 2009.
All materials provided on this site are protected by copyright and are owned by or licensed to TTI.
Except as expressly permitted by TTI or the copyright owner, any person or company who uses this site must not use, reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, the materials or any information, software or other content, in whole or in part, which is available through this site.
Tags