High success rate for the ATO in 2013 tax cases

From January to December 2013, the ATO/Commonwealth achieved an approximately 75 per cent success rate in tax litigation in the Federal Court, Full Federal Court and High Court of Australia.

Successes included: the first case on the GST general anti-avoidance provision, Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16, which was also the first High Court case on GST; the first case on the promoter penalty provisions in Division 290 of Schedule 1 of the Taxation Administration Act 1953 (Cth), Commissioner of Taxation v Ludekens and Van de Steeg [2013] FCAFC 100 — the taxpayer has, however, sought special leave to appeal to the High Court in this case and the outcome of that application and, if granted, the High Court appeal should be looked for in 2014; and all of the constitutional challenges, including the challenge to the mining resource rent tax in the High Court, Fortescue Metals Group and others v Commonwealth of Australia [2013] HCA 34, although this may prove a pyrrhic victory in the light of the coalition government’s policy to repeal the mining resource rent tax.

Excluding basic collection cases (e.g. winding up companies), purely court procedural cases (e.g. seeking orders as to the service of evidence) and High Court special leave cases, the following table sets out the win/loss statistics and tells the story of tax litigation in 2013…

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