“Advocacy at its best confines itself to the issue which the law prescribes, and does not disregard procedural restrictions; because, before a competent tribunal, its effectiveness is thus weakened; and good advocacy avoids the error of underrating any tribunal, however high.” Sir Owen Dixon, 1933 Jesting Pilate (William Hein, 2nd ed, 1997) 12
This book is for the tax practitioner who needs to be effective when writing. It identifies the key laws, rules and expectations which affect the form and content of the main documents tax practitioners need to write.
Tax Effective Writing aims to show how the tax practitioner can write those documents in a way that satisfies the relevant laws, rules and expectations at the same time as being effective in persuading, explaining or producing the desired tax effect.
Effective Writing
The taxing need to write
Identify the reader(s)
Writing something to be read
Leading the reader
Frame the issues
Textual and structural ambiguity
Techniques and style are different from content
Writing to intuitive responses and shared dispositions
Anchoring, availability and representativeness
The sequence and order of ideas
Physical presentation and legibility
Rhetoric
Sentence length, rhythm and meter
A final word of general application: beware peccadilloes and idiosyncrasies of the reader
Opinions and Advices
Write to be understood
Identify the task or retainer
Where to start
The content of the retainer
Duties beyond the retainer
Determine what issues prudence requires to be considered
Identify the tax issues needed to be considered
Setting out the relevant facts
The expression of professional advice or opinion
Adviser liability, risk and disclaimers
Compliance with the adviser’s legal, professional and ethical obligations
Do other prohibitions apply to the writer’s task?
Candour
Notice of Objection
The reader
Sufficiently explicit language
Valid objection
Approved forms
Who may object?
Grounds must be stated fully and in detail
Substituting the language of the law with the grounds
Caution: be accurate and truthful
Objecting against amended assessments or determinations
Objecting against discretions
Part IVA
Effective clarity and ineffective detail
Sample notice of objection
Sample notice of objection stating grounds in broad terms
Reviews and Appeals
The reader
The Administrative Appeals Tribunal as the reader
The Federal Court as the reader
The importance and distinction between fact and law
Formal requirements for Tribunal applications
State the reason relied on
Formal requirements for Federal Court appeals
Statements expressing the relevant issues, facts, grounds or questions
Make clear the connection between facts and conclusions
Write for all readers and their purposes
Notice of appeal against appealable objection decision under section 14ZZ Taxation Administration Act 1953
Notice of appeal from a tribunal
Sample statement of facts, issues and contentions
Expert Opinion Evidence
The reader
Expert opinion for litigation
Qualification of the person as an expert
Form and content of expert opinion for court
The expert’s duty
The duty of those assisting the experts
Communications with experts may be discoverable
Formulating the question for the expert to opine upon
Questions must produce usable answers
Show the expert’s expertise to be relevant to the questions
Show the basis of the opinion
Analysis and explanation
The expert needs to write for the reader
Expert evidence about conclusions and their basis
Joint reports
Submissions
The reader
Submissions to the Commissioner
Administrative offences
Inadvertent loss of rights by what is submitted
Submissions to the GAAR Panel
Forensic decisions about content
Submissions to courts and tribunals
Submissions should be useful and persuasive
Frame the issues in submissions
CRAC method for submissions
The end: state the consequence sought
Private Rulings
The reader
Required form of applications
Writing for a subsequent writer
Minimum contents
The need to identify the scheme on which ruling is sought
Other information and assumptions
Declining to rule and the content of an application
Applications must identify questions, facts and issues
Anti-avoidance provisions and rulings
Private ruling application (tax professionals)
Private ruling application (not for tax professionals)
High Court Special Leave Applications
The reader
Statutory criteria for special leave
Special leave to appeal in tax cases
Form of application
Written summary of argument
Special leave questions
Reasons special leave should not be granted
Statement of the facts
Facts not argument
The order of things
Respondent’s statement of factual issues in contention
Reasons and argument
Table of authorities, legislation and other material
Draft notice of appeal
Sample draft notice of appeal from Federal Commissioner of Taxation v Stone
