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ItemA critique of the judicial recognition of the status and application of the doctrine of legal professional privilege and confidentiality vis-a-vis the discretionary powers of the Commissioner of Taxation pursuant to sections 263 and 264 of the Australian Income Tax Assessment act with comparisons drawn from other jurisdictionsFernandez, Rodger ( 1993)
ItemThe introduction of the consolidation regime into the income tax assessment act 1997 (CTH) : an analysis of the effect on the subsidiary disposal decision for a corporate groupSherman, Tim ( 2007)In 1998, the Australian Government appointed John Ralph to conduct a review of Australian business taxation. Under its terms of reference, the Review of Business Taxation (`the Review') was required to make recommendations regarding the design of the business tax system, ongoing policy-making, drafting of legislation and the administration of business taxation. As a preliminary step, the Review released a number of discussion papers. In the first of these, A Strong Foundation, the Review set out what it considered to be an appropriate design framework for business taxation, and identified three national taxation objectives that should provide `high level guidance for the design and operation of the business tax system'. One of these objectives was optimising economic growth. In particular, the Review indicated that: An internationally competitive economy will require, and be sustained by, efficient economic use of its resources. To that end, a vital precondition for international competitiveness 'vill be to ensure that the business tax system does not influence business decisions unnecessarily. The culmination of the work of the Review was the release of the report, A Tax System Redesigned: More Certain, Equitable and Durable (`the Ralph Report'), which set out the Review's final recommendations for business tax reform. The cornerstone of the new business tax system recommended in the Ralph Report was the so-called `consolidation regime', which would permit certain corporate groups to be treated as a single entity for tax purposes. This recommendation was accepted by the Government and enacted, and, as a result, since 1 July 2002 certain corporate groups have been able to choose to be treated as a single entity for tax purposes. To what extent does this consolidation regime comply with the original design framework put forward by the Review in A Strong Foundation? In particular, does it satisfy the `vital precondition' that it `does not influence business decisions unnecessarily'? In this thesis, I consider this issue by focusing on one particular business decision that could be affected by the consolidation regime; namely, the decision by a corporate group to dispose of a subsidiary (`the subsidiary disposal decision'). I examine the ways in which the consolidation regime might influence this decision, and assess the extent to which this renders the consolidation regime liable to the charge of influencing the subsidiary disposal decision unnecessarily. I focus on four examples of where the consolidation regime could affect the subsidiary disposal decision: the payment of a pre-sale dividend by the subsidiary (or `target'); a presale debt reconstruction in relation to the target; some particular cost base issues; and the liability, as between group members, to pay tax under the consolidation regime. I conclude that the consolidation regime influences the subsidiary disposal decision. I then suggest that, because that influence is difficult to justify having regard to the national tax objectives set in A Strong Foundation, the consolidation regime influences the subsidiary disposal decision `unnecessarily'.