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‘Under pressure’? Section 39 of the Legal Profession Uniform Law and the Federal Commissioner of Taxation

Published on 01 Jul 22 by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE

Taxation and legal professional privilege have a long history. (Indeed, it appears that one of the earliest cases to involve a claim of the privilege, Berd v Lovelace [1577] Cary 62, arose in a tax context.) Of late, however, the Australian Taxation Office (the ATO) has been bellicose in its opposition to claims of legal professional privilege. The ATO insists that legal practitioners who, in its view, make unfounded privilege claims leave themselves open to sanction for breaching their obligation to comply with the Federal Commissioner of Taxation’s (the Commissioner’s) coercive information-gathering powers (which, the ATO accepts, are subject to legal professional privilege).

What seems to have not quite received the same attention, though, are some of the prohibitions that might constrain the ATO itself in the exercise of its powers in this regard. Relevantly, s 39 of the Legal Profession Uniform Law provides that: ‘A person must not cause or induce or attempt to cause or induce a law practice or a legal practitioner associate of a law practice to contravene this Law, the Uniform Rules or other professional obligations’.

This article discusses the potential relevance of s 39 (and its equivalents in Australian jurisdictions that have not adopted the Uniform Law) to the Commissioner and to agents or officers of the Commissioner. While pursuing the hardly objectionable objective that the legally ‘correct’ amount of tax be paid, it would appear that well-meaning but overzealous ATO officers could potentially expose themselves to criminal culpability if they seek to pressure practitioners in relation to claims of legal professional privilege, contrary to s 39 and its equivalents.

Author profile

Eu-Jin Teo CTA
Eu-Jin is a Senior Lecturer, The University of Melbourne; Adjunct Lecturer in Business Law and Taxation, Monash University, Australia. - Current at 15 October 2019
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