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Could the ATO have attempted to ‘pervert the course of justice’? Judge asks

Friday, November 03, 2017

We work hard to ensure that our criticism of the way the Australian Taxation Office treats self-employed people is based on facts. Our summary of the mistreatment of Rod Douglass we think demonstrates the facts.

And the fact is that what happened to Rod could happen to anyone. This includes consultants, IT and engineering professionals, tradies, even home-based small business people.

But what has just occurred is extraordinary.

Michael Shord happens to be a diver working on overseas oil rigs. He is arguing with the ATO over how much tax he owes. Fair enough! His situation is a bit complex. However, a Tribunal made an error in a ruling. The ATO knew this. But when Michael tried to get the error fixed, the ATO opposed this in higher Courts.

In a Full Federal Court judgment last week Justice Logan said: (brackets and emphasized words are ours)
the “…denial of procedural fairness to Mr Shord … is patent.”
and
“…the Commissioner (Tax) should not just have not opposed the amendment (fixing the error) but readily consented to it…”
Justice Logan then said of the ATO’s behaviour in opposing the fix,
“…Departures from model litigant behaviour can, in particular circumstances, constitute professional misconduct, a contempt of court or an attempt, contrary to s 43 of the Crimes Act 1914 (Cth), to pervert the course of justice.”
This is arguably an extraordinary judicial criticism, almost a warning to the ATO.

However, Justice Logan then stated
“…it appears to me that the lack of a ready concession of the jurisdictional error was just the result of a lack of understanding…”
Prior to stating the above, Justice Logan demonstrated an acute understanding of history and the foundations upon which a just society sits. And further, how lack of integrity and honesty by tax authorities can crumble those foundations. His comments are thoughtful. Read them here.

Justice Logan’s analysis reminds us of the importance of our campaign for reform of the ATO. It’s not just about self-employed people but the very integrity of our society.

For Self-Employed Australia members we have links to a summary of last week’s judgment and the judgment itself. Also, here’s a quick YouTube summary.

Robert Gottliebsen in The Australian has also commented on the case: ‘Federal Court judge warns tax Commissioner

Understanding both Rod’s case and Michael Shord’s will better prepare you when you’re faced with a Tax Audit.
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