Dealing with public money and the scope of the Commissioner's powers - The 18th Annual States' Taxation Conference

The framework which underpins the Commissioner’s powers has both legislative and common law aspects. In the past, there has been debate as to whether these powers are wide or more narrow in scope.

For those in revenue practice, dealing with public money, there are wide-ranging and important implications they may not have considered before entering a dispute.

At the 18th Annual States' Taxation Conference, taking place in July, David Marks, QC, CTA (Queensland Bar) presents the session ‘Not my money to give away’, where he will discuss the scope of the Commissioner’s powers, looking at the nature of a state taxes dispute, and present a “plain theory” about dealing with what is a difficult area.

We spoke to David about some of the challenges.

“This is a particularly difficult area. There are subtleties, and the caselaw is full of obscure distinctions. My aim is to lay out a workable, plain theory” he said.

David’s session looks at the scope of the Commissioner’s powers, including claims about the so-called “power of general administration”, and discusses attempts to force or restrain particular action by an official, as well as settlement negotiations before and after assessment.

David W Marks QC, CTA

“This topic forces me to grapple with the Commissioners’ powers of compromise and management. This is an important cornerstone of revenue practice.”

David’s session will attempt to discern the true scope of the Commissioner’s “power”, but will also look at the place of the revenue in our modified Westminster systems of governments.

He said “Taxpayers can go into settlement negotiations not understanding the constitutional implications of dealing with public money. On the other side, the elusive nature of the executive’s powers to deal with public money can slow negotiations.”

“This is going to entail going back to basics. State laws governing public monies have to be considered, but we’ll do some interesting stuff coming from English and Australian case examples, starting with the Fleet Street Casuals case. The idea behind my session is that both sides of a negotiation about a State taxes dispute will better understand the other’s position.”

A commercial Silk practising principally in tax, David has a broader practice in commercial litigation, trusts and estates, and administrative law. He contributes to the profession through his committee work for The Tax Institute and other professional bodies, receiving The Tax Institute’s Meritorious Service Award in 2013.

This year’s program also features a states’ taxes cases and legislative update, and a special dual session looking at the big cases across duties and payroll.

The 18th Annual States' Taxation Conference takes place 26-27 July 2018 at the Park Hyatt, Melbourne. Find out more on our website.


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