The recent decisions in AP Energy, Placer Dome and RCF IV have cast a fresh light on the care that needs to be taken when issuing instructions for expert evidence. These cases focused on valuation issues for mining projects but there are implications for other items of dutiable property, and across all state taxes.
At July’s 18th Annual States' Taxation Conference in Melbourne, John Middleton, CTA (Clayton Utz) presents the session ‘Recent decisions on valuations and briefing experts’. We spoke to him about the potential impact of these recent decisions and what else he’ll be covering at the event.
John said “My session is going to look at the duty implications of some recent cases that touch on valuations and goodwill for mining companies. I've really enjoyed digging around in the old goodwill cases with animal metaphors like Krakos. I'll also be covering off on some tricky issues with briefing valuers and experts - how you can get the best out of the evidence they give. There is no point seeking an expert's opinion if you are not asking them the right questions in the first place.”
|John Middleton, CTA|
With a focus on the potential impact of those decisions, John’s session specifically looks at the importance of assumptions when instructing a valuer or expert, what is the requirement of the statute, as it relates to what is being valued, and differing valuation methodologies.
“I’ll be offering some thoughts on how to use a valuer's evidence correctly as part of your case - has the right thing been valued is probably as important as the correct valuation methodology being applied - assuming that there is such as a thing as a "correct" valuation methodology at all. I hope delegates will come away with a better understanding of Placer and RCF, and how the evidence (or lack of evidence) in those cases was used to support the decision the Court came to.”
John said “I've been working in revenue law for over 20 years now - that’s a scary thought at times. I can still remember the first "unexpected" stamp duty assessment I received in respect of a loan agreement, and how we managed to have it reissued as a nil assessment after some legal input to the assessor. I do other things besides stamp duty - for me, working in the grey areas of tension between different taxes and tax policies is where the real fun is. One example is how the Lend Lease decision interrelates with GSTR 2015/2 in relation to issues of consideration. There have been some brows creased over that recently.”
A Special Counsel at Clayton Utz Brisbane, John specialises in revenue and commercial law. He has provided legal advice in respect of the structuring, restructuring, purchase and sale of businesses and entities of all types. He has particular experience in CGT planning for the sale of businesses and also practises in stamp duty, GST and general tax.
Asked about some of the areas that can trip up practitioners, he said “Especially for taxpayers, who have to prove the Commissioner wrong, it’s really important to get your evidence right in a dispute, even if that’s just at objection stage, or even earlier. It’s one thing to make an unsupported proposition in a letter, it’s another to say ‘and here is something backing that up". Even for the revenue, care should be taken in getting an expert opinion or evidence on the issues in the case - which might not be the issues you really want to ventilate.”
“Ultimately, I want delegates to leave knowing how to best brief a valuer or other expert to support the legal case they are making, together with some views about the sources of value of a mining company being not limited to its production tenements.”
The 18th Annual States' Taxation Conference takes place 26-27 July 2018 at the Park Hyatt, Melbourne.
The technical program has been pitched at a level that provides the general practitioner with a good understanding of current issues, although more technical topics are covered in depth for specialists.
Designed to be universally appealing, sessions look at recent cases, the Commissioner’s powers of administration, current digital transformation projects and compliance initiatives in the Revenue Offices. The program once again features the dual ‘duties’ and ‘payroll tax’ streams.
Find out more on our website.