The duties of tax commissioners: the sustainability of the general judicial denial of tortious or equitable duties to Australian and New Zealand tax payers

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Abstract

In both Australia and New Zealand the prevailing judicial view is that the duties of the Commissioner of Taxation and Commissioner of Inland Revenue respectively are owed exclusively to the Crown. Consequently, private law relief is usually denied to taxpayers making tortious or equitable claims against the relevant Commissioner. This article explores and confirms this judicial approach and questions its sustainability through assessing both the legal robustness of the judicial reasoning and the validity of the public policy concerns underlying the current judicial stance. It is concluded that the public policy grounds often relied upon in both countries are questionable. However, the New Zealand stance stems from a solid foundation of consistency with express legislative direction and close examination of recognised private law legal principles absent in the Australian decisions. Accordingly, while the approach in both countries is open to challenge, the Australian judicial approach is especially unsustainable.
Original languageEnglish
Pages (from-to)95-120
Number of pages26
JournalAustralasian Tax Teachers Association. Journal
Volume4
Issue number1
Publication statusPublished - 2009
Externally publishedYes

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