Fraud or evasion - 6th Annual Victorian Tax Forum

The Commissioner has revised the practice statement that provides guidance to ATO staff considering fraud or evasion in the context of the unlimited time periods which allow the Commissioner to amend assessments (or to seek the payment of indirect tax which has been underpaid) due to fraud or evasion (PS LA 2008/6).

The practice statement outlines:

    Melanie Baker, CTA

  • what is fraud or evasion; 
  • the policy reasons for having an unlimited amendment period where there is fraud or evasion; 
  • the principles underpinning the ATO approach to fraud or evasion; and 
  • the procedures and work practices to be followed, including technical engagements and referrals, in considering fraud or evasion. 

The practice statement is supplemented by the Fraud or evasion guideline (period of review). The principles and processes set out in these documents recognise that fraud and evasion are both serious matters, and never to be inferred lightly.

At October's 6th Annual Victorian Tax Forum in Melbourne, Melanie Baker, CTA, (Victorian Bar) and Trevor Jones, CTA, (Australian Taxation Office) present the session ‘Fraud or evasion?’, part of the Forum’s Hot Topics stream.

The Commissioner has extensive powers to amend assessments at any time where there is fraud or evasion. The session will consider what this means at law, and when and how the Commissioner should apply those powers.

Melanie and Trevor presented this topic at the Institute’s 33rd National Convention, held in Cairns in March 2018, prior to Practice Statement Law Administration PS LA 2008/6 being updated. Their upcoming session, following this recent update promises to be topical and should be of interest to all delegates at October’s Forum.

Melanie’s original paper, presented at the National Convention, looked at the concepts of fraud and evasion, and the lack of a fixed definition of evasion. It covered the relevance of the conduct of agents, and timing considerations and conduct during the audit.

Covering challenges to the Commissioner’s opinion on fraud or evasion, Melanie looked at Challenges to the Opinion under Part IVC and Constitutional writs and ancillary relief under s 39B of the Judiciary Act 1903 (Cth).

Under Challenges to the Opinion under Part IVC, the paper covered:

  • McAndrew and the Onus of the Taxpayer in Part IVC Proceedings 
  • The Commissioner’s Opinion as a Criterion for Liability 
  • Tribunal or Federal Court? 
  • Binetter v Commissioner of Taxation 
  • Difficulties in Challenging the Commissioner’s Opinion on Fraud or Evasion before the Tribunal 
  • Examples of Judicial Review of the Commissioner’s Opinion before the Federal Court 
  • Are There Any Obligations on the Commissioner with respect to his Opinion? 

The original paper is available to download here.

Melanie Baker, CTA, is a barrister who specialises in tax. Before joining the Victorian Bar, she was a Senior Associate in the Tax group of Allens Arthur Robinson. Prior to joining Allens in 2002, Melanie worked at the ATO in Canberra for two years. As a barrister, Melanie regularly advises, and appears on behalf of, taxpayers and the Commissioner of Taxation.

Trevor Jones, CTA, is a Senior Tax Counsel in Melbourne with over 30 years experience at the ATO. He presently covers a range of areas, including penalties, objections, periods of review, litigation and TaxTime instructions.

Melanie and Trevor’s session is one of nine in the Forum’s Hot Topics stream, which runs alongside concurrent sessions in the Forum’s Private and Corporate streams. Other sessions in this stream look at legislative reforms in the property sector, reading tax treaties, cryptocurrencies, the black economy, ATO dispute resolution for private groups, Single Touch Payroll, and state taxes.

The 6th Annual Vic Tax Forum takes place 11-12 October 2018, at the Crown Conference Centre, Melbourne. Find out more about this session and the rest of the program on our website.


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