A detailed assessment of the potential for a successful negligence claim against the Commissioner of Taxation

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Abstract

Negligence has never been successfully claimed against the Commissioner of Taxation in Australia. Very few writers in the field of taxpayer rights have ventured to affirm that a successful claim is a real prospect. Curiously, though, there is no judicial or academic comment suggesting the impossibility of such a claim in this country. This article identifies and examines the substantial legal hurdles faced by a taxpayer seeking to bring a viable negligence action against the Commissioner. The first of these hurdles is the partial immunity from suit in negligence enjoyed by the Commissioner. This includes both the immunity applicable to the Commissioner as a statutory authority per se as well as the extended immunity from suit in negligence of the Commissioner as evidenced by relevant case law. Part I of this article addresses this issue. Part II looks at the particular challenges of formulating such a negligence action even in cases in which outright immunity from suit might not be afforded to the Commissioner. These particular challenges relate to the application of the current judicially favoured "incremental" approach to resolving novel negligence actions. The outcome of this analysis is an identification of the limited circumstances in which a viable potential cause of action in negligence might be raised by an aggrieved taxpayer against the Commissioner.
Original languageEnglish
Pages (from-to)241-260
Number of pages20
JournalAustralian Tax Review
Volume37
Issue number4
Publication statusPublished - 2008
Externally publishedYes

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