Taxation Law - Appeals To The Federal Court

By: Frank Egan - LAC Lawyers
Appeals to the Federal Court require a written application which sets out brief details of the objection decision and must be filed with the relevant Federal Court Registry.

The application must also be accompanied by the prescribed fee applicable to all applications to the Federal Court. This is currently $606.00 for individuals and $1,453.00 for corporations for each objection decision.

The taxpayer must also serve a sealed copy of the application on the Commissioner, as Respondent, at the Office of the Australian Government Solicitor in the state or territory in which the application was filed.

Within 28 days of serving a sealed copy of the application on the Commissioner, the Australian Taxation Office will provide the taxpayer with a Notice of Appearance, a copy of the documents filed with the Federal Court, and a statement of the facts, issues and contentions regarded by the Commissioner as relevant to the appeal.

The Federal Court will then call a Directions Hearing which must be called at least five weeks after the taxpayer’s application was filed.

Once the Federal Court is satisfied that the Commissioner has provided all relevant documents, appeals are then set down for hearing. The taxpayer must pay a setting down fee of $1,211.00 for individuals and $2,422.00 for corporations when a date is fixed for the hearing of the appeal. There is also a daily hearing fee of $483.00 for individuals and $969.00 for corporations.

The Federal Court is able to overturn a decision of the Commissioner of Taxation. However, the Federal Court cannot interfere with any discretion exercised by the Commissioner. It can only refer the matter back to the Commissioner for further assessment.

The Federal Court is able to award costs either against the Commissioner of Taxation if the taxpayer is successful, or against the taxpayer if the Commissioner is successful. In either case, the proportion of costs awarded will generally be between 50% and 60% of the actual costs incurred by the successful party. However, if the Federal Court were to conclude that the behaviour of either the taxpayer or the Commissioner warranted sanction because of the way in which the case had been brought or conducted, a higher proportion of costs (known as solicitor/client costs) may be awarded.

A taxpayer should seek legal advice as to the choice of whether to seek review in the AAT or appeal in the Federal Court may involve taxpayers seeking legal advice. Whilst the Federal Court is the more appropriate forum for objections which are highly technical or which involve complex propositions of taxation law, the court costs are high. Taxpayers generally retain barristers and solicitors to conduct their appeals. The AAT, on the other hand, is cheaper to commence and pursue reviews and places an emphasis upon consensual resolution of disputes. However, AAT members may be less experienced than Federal Court judges in hearing highly complex disputes which involve difficult propositions of taxation law or in managing pre-trial processes to ensure a speedy hearing.

Taxpayers do have further appeals both from the AAT or from the Federal Court.

Whether disputing Private Rulings or taxation assessments, taxpayers maximise their chance of success by utilizing the services of lawyers who are familiar with taxation law and the arguing of objections.

Finally, taxpayers should remember that the Australian Taxation Office will impose a General Interest Charge (GIC) which is currently 13.19% on all outstanding taxation assessments from the date that the assessment was made. The lodging of a review at the AAT or appeal to the Federal Court does not stop this GIC from accumulating. Taxpayers should seek legal advice as to whether to pay either the whole or a part of the disputed taxation notwithstanding commencing the review or appeal. While this will have financial consequences on the taxpayer, the payment will prevent further GIC from accruing. The cost of funding the payment will be less than the GIC. If the taxpayer is successful in the review or appeal, and the amount of the assessment has already been paid, the Commissioner of Taxation is not obliged to refund interest on the refunded taxation payments.

Article Source: http://www.articleblender.com


Frank Egan is the Chief Executive Officer of LAC Lawyers Sydney and has over 27 years of experience as a lawyer.

Taxation Law - Changes To Private Rulings

By: Frank Egan - LAC Lawyers
The Commissioner of Taxation does have the power to change a Private Ruling in four situations as follows:

1 Where the taxpayer gives consent to the Ruling being changed;

2 Without the taxpayer’s consent, if the Private Ruling is about an arrangement which has not yet been carried out. This means that if the Private Ruling covered an arrangement which the taxpayer repeatedly carried out over time (for example buying and selling a particular item), the Private Ruling could be changed for any of the arrangements which occurred after the date of the change;

3 Without the taxpayer’s consent where the arrangement had commenced. This is limited, however, to those circumstances where the Private Ruling was causing another taxpayer to be disadvantaged and his or her disadvantage was greater than the disadvantage that the Rulee would suffer if the Ruling were to be changed; and

4 By issuing a Public Ruling which is inconsistent with the Private Ruling. However, this could only occur if the taxpayer’s arrangement has not begun to be carried out or if it has commenced and another taxpayer would be disadvantaged to a much greater extent than the Rulee.

If the taxpayer received the Private Ruling before he or she lodged the return for the year in which the arrangement took place, and then the taxpayer did not follow that Ruling, then the taxpayer may be liable for the extra tax that he or she would have paid under the Ruling. If the taxpayer had received the Private Ruling after he or she lodged the relevant return, then the Commissioner has the power to amend the assessment to take the Private Ruling into account. This may decrease the taxation liability but may also increase that liability.

The way in which a taxpayer can have a Private Ruling reviewed is determined by whether or not an assessment in respect of an income tax return has issued which deals with the arrangement covered by the Private Ruling.

If the assessment has already issued, then the taxpayer should have the assessment reviewed. If no assessment is issued, then the taxpayer should have the Ruling reviewed.

To have an assessment reviewed, the taxpayer needs to lodge an objection. That objection must be in writing in which the taxpayer informs the Commissioner which assessment is to be reviewed and provides details of the years and the relevant tax file number. The objection must also state which matter dealt with within the assessment is disputed and why the taxpayer believes that the assessment should be amended. For most short period of return taxpayers, the objection must be lodged within two years of the date upon which the taxpayer received the original assessment. There are no fees for lodging objections.

To have a Private Ruling reviewed, the taxpayer must also need to lodge an objection. Again, the objection must be in writing. The taxpayer must provide the Authorisation number of the Private Ruling. The taxpayer must also inform the Commissioner which part of the Private Ruling is disputed and why the taxpayer believes the Ruling should be changed.

This objection to the Ruling must be lodged within 60 days of the date of service of the Private Ruling upon the taxpayer or, for short period of return taxpayers, within two years of the last day allowed for lodging the tax return for the particular year that the Private Ruling is about, whichever is the latest. Again, there are no fees for lodging objections to Private Rulings.

Article Source: http://www.articleblender.com


Frank Egan is the Chief Executive Officer of LAC Taxation Lawyers and has over 27 years of experience as a lawyer.

The Law Of Sowing And Reaping

Many people have heard the statement, "You reap what you sow." Or, as my wife learned when she was making drapes for a living, "You rip what you sew." When it comes to sowing and reaping we often fail to enjoy the blessings that God has for us because we don't fully understand this law. Some people refer to it under different names, but some also recognize that this is the law of laws. Understanding how this works can help us create the kind of life we desire.

Galatians 6:7-10 says, "Do not be deceived, God is not mocked; for whatever a man sows, that he will also reap. For he who sows to his flesh will of the flesh reap corruption, but he who sows to the Spirit will of the Spirit reap everlasting life. And let us not grow weary while doing good, for in due season we shall reap if we do not lose heart. Therefore, as we have opportunity, let us do good to all, especially to those who are of the household of faith."

The first thing is that Paul; the writer of Galatians, does is to clearly tell us to stop being deceived. We need to avoid the mistake of believing that the circumstances and conditions we see in our lives are all external to us, that we are just victims and "god" is picking on us.

In the NIV, Proverbs 19:3 says, "A man's own folly ruins his life, yet his heart rages against the LORD." And Paul is simply restating this fact. Many people ruin their lives by their own actions, their thoughts, words, and actions, and then get angry with God.

When we recognize that the circumstances and conditions of our lives are the result of our own sowing, we will finally be able to take authority over them. As long as we remain deceived, and continue to blame God instead of taking responsibility for our lives, we remain powerless to change things.

We are sowing seeds with every thought, word, and action we take. Most of the time we are completely unaware of what we are sowing, and we end up with a lot of weeds in our field (our lives) rather than good seeds. But we can change that by becoming aware of what we are thinking, saying, and doing. Once we start listening to, and observing, how we think and act we can start to take steps to change first our thoughts, then our words. When we combine that with changing what we do, we will begin to reap a better harvest.

Many people struggle with having too much month left at the end of their money. No matter how hard they work, there never seems to be enough. They think about all that they can't afford, they constantly talk about how little they have, and the focus of their spending is on the bare necessities. In order for them to have more money they need to change the seeds they are sowing. And that doesn't mean that they have to give away all their cash.

Jesus said, "Give, and it will be given to you. A good measure, pressed down, shaken together and running over, will be poured into your lap. For with the measure you use, it will be measured to you." (Luke 6:38) As we start to sow in faith, we begin to think about and be thankful for the abundance that we already have, no matter how small it may seem. And we need to start giving to others. If we don't have enough money, we can start sowing by finding ways to give of our time.

And when it comes to our income, we should have the goal of paying a tithe to our church. If that's too much right now, we can start with some smaller amount that we regularly give. Paying a tithe isn't about obeying a commandment out of the Old Testament; it's about making a statement to God and ourselves that we trust Him to take care of us financially. It's really a declaration that we believe in God's abundance.

As we get going with this whole process we need to be careful that we don't lose heart and grow weary. Because we are sowing seeds, and not popping coins in a vending machine, it will take some time before we see the results. But Paul reminds us that we will reap, as long as we don't give up.

Article Source: http://www.articleblender.com


Get two chapters from Rob Marshall's book, "Taking On Goliath - How To Unleash The David In All Of Us" when you sign up for his free weekly newsletter. Visit: www.TakingOnGoliath.com

Family Law - Cohabitation Agreement Pursuant To Section 285 Of The Property Law Act 1958 (vic.)

By: Michael Pickering - LAC Lawyers
Partners and spouses will be aware of the 3 types of financial agreements under the Family Law Act (Cth.). These financial agreements are as follows:

- Pre-Nuptial Agreements (Section 90B)
- Post-Nuptial Agreements (Section 90C)
- Post-Divorce Agreements (Section 90D)

Post-Nuptial Agreements are commonly used to formalize property settlements after a breakdown of marriage, as an alternative to Family Court consent orders and to make a binding provision in relation to spousal maintenance.

Post-Divorce Agreements, on the other hand, are not as common. This is an agreement made after the parties have divorced. Such agreements deal with property acquired up until the time of divorce.

Whilst Victoria, along with other State Parliaments, save for Western Australia, have agreed to refer their powers over defacto and same-sex property matters to the Federal Government, Victorian courts still exercise power over cohabitation agreements entered into between two partners who intend to live together. This power is exercised in Victoria under Section 285 of the Property Law Act 1958 (Vic.). This section gives Victorian courts the authority to adjust the interest of domestic partners in property which either or both may own in terms that appear just and equitable having regard to a number of factors such as:

- Financial and non-financial contributions made directly or indirectly by the domestic partners to acquiring or improving any property; and

- Contributions made by either of the domestic partners as to the welfare of the other domestic partner or to the welfare of the family including any children.

Increasingly, partners considering cohabitation (as opposed to formal marriage), and either have no children from previous relationships or who do not wish to have any children from the current relationship, are entering into cohabitation agreements pursuant to the Victorian Property Law Act 1958.

The primary purpose of such a cohabitation agreement is to protect the assets of each party in the future. The agreement provides that should the relationship end, each party will leave the relationship with those assets which he or she brought into the relationship. Only jointly acquired assets fall into the asset pool for distribution by Victorian courts pursuant to the powers provided by Section 285.

Cohabitation agreements under the Property Law Act 1958 are often sought by partners to relationships who own substantial assets and who wish to preserve those assets if the relationship ends unexpectedly quickly.

These cohabitation agreements are not as formal as their counterparts under the Family Law Act. The State cohabitation agreements, however, can be just as influential. They should be treated by the domestic partners (and by their respective legal advisors) as serious documents.

State courts are more likely to uphold cohabitation agreements pursuant to statutes like the Property Law Act 1958 than are either the Family Court or the Federal Magistrates' Court when requested to uphold the three types of financial agreement possible under the Family Law Act. This is primarily due to the fact that financial agreements under the Family Law Act will often need to make provision for spousal maintenance in the context of a marriage which may have lasted for many years and also make financial provision for the education, welfare and support of children under the age of 18.

Clients should be advised, however, that agreements under Section 285 of the Property Law Act are not definitive. Such cohabitation agreements will not necessarily finally determine the distribution of assets in the event of a relationship breakdown. However, the cohabitation agreements may be taken into account by Victorian courts in their determination of what is a just and equitable resolution of the distribution of property when the domestic relationship has ended.

Clients should be advised that the longer a domestic relationship lasts, the less likely it will be that Victorian courts will enforce a cohabitation agreement which was drafted, for instance, many years previously when the domestic relationship was only just commencing in circumstances where one partner has been the effective homemaker, or where, contrary to initial plans, the partners did decide to have children. In those circumstances, clients would be best advised to enter into a pre-nuptial agreement under Section 90B of the Family Law Act or, at the very least, enter into an updated cohabitation agreement under Section 285 of the Property Law Act 1958 (Vic.).

Clients must also understand that any type of pre-nuptial agreement (whether under the Family Law Act or the Property Law Act) are subject to the normal contractual rules of enforceability. In other words, if the agreements have been entered into by virtue of duress, undue influence, fraud, or mistake, no court will enforce the agreement and property will be divided in accordance with relevant legislation.

Clients should also be aware that financial agreements under the Family Law Act and cohabitation agreements under the Property Law Act should be accompanied by effective estate planning. At a minimum, clients are best advised to effect wills when entering into pre-nuptial agreements to ensure that their individual property is divided in accordance with their specific wishes rather than in accordance with the statutory formula set out in the Administration and Probate Act 1958 (Vic.).

Article Source: http://www.articleblender.com


Michael Pickering is a solicitor employed at LAC Family Lawyers Melbourne. He has nearly 20 years experience as a lawyer.

The Role Of The Family Lawyer: Putting The “proper” Back Into Property Settlements

By: Frank Egan - LAC Lawyers
Deal of the Day! - SAVE $15 - Netgear Wireless G Router 108Mbps 4-Port $19

Family law matters can be stressful for all parties involved. Most family law matters are resolved through negotiation, so it is important that you are aware of your legal rights. This is where a family lawyer can help. A lawyer can assist you obtain the best outcome and prevent potentially ongoing and costly legal complications.

What is a property settlement?

This is the division of all “property” between married or de facto couples who seek divorce or separation. “Property” is quite widely interpreted in the family law system and includes pretty much everything that is capable of being owned. This can include land, houses, businesses including partnerships, motor vehicles, bank accounts, shares, household goods and furniture, tools of trade or other equipment, trusts and superannuation. The property settlement includes all property belonging to you and your partner, regardless of whose name the property is in.

Even if these items were owned by one of you prior to the start of the relationship, or they were left in a will to one of you, they may still form part of the “pool of assets”. Any debts also need to be calculated and taken into account in a property settlement.

Why do we need a lawyer when we have already agreed upon what property we will each receive?

Relying on an informal property settlement is quite risky as it may lead to you getting caught up in further property disputes down the track. For instance, there is a possibility you’re your partner will change his or her mind or even conceal something which should rightfully be in the agreement. Speak to us at LAC about formalising your agreement, so that you don’t get a nasty shock down the track.

Can’t we just skip the visit to the lawyer and go straight to court?

The courts can often assist with more complex disputes, such as how to equitably divide a monetary “gift” which was given to your partner by his or her parents.

However, going to court is not always the most pleasant way to reach a settlement. It may not guarantee the result you want and it can be costly both financially and emotionally. It is often simpler and cheaper to use your lawyer to help you reach an agreement with your partner outside of court, and go to court only as a last resort. By consulting a lawyer, you and your partner have the option of exchanging offers of settlement and conducting negotiations at any time.

Do we have to split everything equally?

All is fair in love and war, which doesn’t mean there will always be a 50:50 division of the property. The proportions will vary according to your personal circumstances.

A lawyer will assist you reach a property settlement by advising you and your partner’s legal entitlements over your joint pool of assets.

Firstly, a lawyer will advise you on the nature and amount of contributions made by you and your partner. These can be financial contributions such as wages, or non-financial contributions such as undertaking parental responsibilities.

Secondly, a lawyer will assist you determine the future needs of you and your partner. Factors taken into consideration include the duration of the relationship, the age and health of the parties, educational qualifications relevant to future work prospects and the need to care for any dependent children.

Once the analysis is completed, a lawyer may then assess any gaps in the information and conduct further investigation if necessary.

I think my partner is hiding assets, how can I investigate?

Relationships can bring out the best in people, but occasionally they can also bring out the worst. Asset hiding is quite common in the course of property settlements, especially when one partner adamantly believes that he or she has rightfully earned and thus owns a particular property interest.

If you suspect that your partner has assets, but you don’t have any details of them, a lawyer can also put sufficient pressure on your partner to meet his or her “full and frank disclosure” obligations, and will advise whether it will be necessary to resort to bringing an application before a court requesting a subpoena, which is a court order demanding production of documents or witness from a third party source. Speak to us at LAC lawyers to determine the most appropriate way of gaining access to your partner’s financial details.

Are we negotiating an emotional settlement or a property settlement?

In order to negotiate the most effective property settlement, lawyers must distance from the emotional issues that arise in family law disputes. However, a good family lawyer will listen empathetically to all your concerns and give objective advice as to your entitlements and legal obligations up until you reach your desired property settlement. At LAC lawyers, we can thoroughly assess your concerns and tailor your settlement negotiations according to your individual circumstances.

Article Source: http://www.articleblender.com


Frank Egan is the Chief Executive Officer of LAC Family Lawyer Sydney and has over 27 years of experience as a lawyer.