CLAW3201: Australian taxation system代写
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CLAW 3201 Australian taxation system Due: Monday 22 April by 9 am
Case analysis and comment
Page 1 of 7
CLAW3201: Australian taxation system
Semester 1 2013
15% Case analysis and comment
Word Length 1,000 words
Due: Monday 22 April by 9am. Submission will be electronic via
Turnitin on Blackboard in accordance with the posted instructions.
Question
The Federal Court case set for your case analysis and comment is:
Sent v FCT [2012] FCA 382 (16 April 2012) it can be downloaded from
AUSTLII at URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/382.html
You need to download it and read it in full.
You are required to analyse the Court’s decision as regards the ‘$11,600,000
Payment’. You are not required to analyse the other matters considered by the Court
such as the procedural aspects of the litigation and the issue of penalty. Consideration
of the $11,600,000 Payment will require you to very briefly comment on why the
Court decided that Part IVA of the Income Tax Assessment Act 1936 did not apply to
the transaction.
In answering the above it will be necessary to look at the Administrative Appeals
Tribunal decision under appeal in the Federal Court: Re Sent and FCT [2011] AATA
198 (25 March 2011) located at
http://www.austlii.edu.au/au/cases/cth/AATA/2011/198.html and consider the
decision of the Full Federal Court Full Federal Court Sent v FCT [2012] FCAFC 187
(19 December 2012) that heard the appeal from the Federal Court located at
http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/187.html
The instructions on what is expected of a case analysis are
set out below.
In a global sense any case analysis of a recent tax case would involve:
1. A précis of the case by giving a brief summary of the facts and the ratio of the
case. The ratio is the legal principle that the Court applied in deciding the case.
This must be distinguished from the obiter dicta which are observations about the
law which may or may not be accurate and which were not strictly necessary in
deciding the case.
CLAW 3201 Australian taxation system Due: Monday 22 April by 9 am
Case analysis and comment
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2. Whether the case will lead to further developments or whether it left certain
questions unanswered should be examined. There may be nothing relevant under
this item.
3. Have there been any legislative developments to take account of the decision? Has
the Commissioner issued a ruling before or after the decision? Is the relevant
ruling consistent with the decision in the case? Did the court ignore a relevant
legislative provision or legal principle because it was not argued by the parties?
Has there been any recent government inquiry into the subject matter covered in
the case?
4. Does the decision promote commercial certainty and make commercial sense? For
example the High Court decided in FCT v Ryan (2000) 201 CLR 109 that a
taxpayer with a loss has not been assessed which means that there is no time limit
on a tax audit. This decision is legally impeccable, but commercially
impracticable because of the delay which it can cause. Another example of this is
the divergence between tax accounting and business accounting. In the 1980's a
corporate taxpayer reported company profits in excess of $100 million whilst
reporting a nil amount as income derived for tax purposes. Would such creative
accounting be less popular if taxable income were equal to corporate profit?
You are required to write a critical case analysis REMEMBER that the points
above should not be applied mechanically.
In undertaking this analysis and comment note that:
Don’t get bogged down in the facts. You must try and extract the RELEVANT
facts so as to set the context to explain the tax consequences. Focus your
discussion on the analysis of how the residence and source is determined.
Important note: We know the facts and what the court found. What we are
looking for is an ANALYSIS of the case and judgments. Merely stating the facts
and regurgitating the judgments will not get you many marks over 50%. You need
to get stuck in and provide us with an insightful and succinct analysis of the
decision (including distilling the relevant facts) to score top marks.
In essence you are being asked to focus on the significance of the case based on the
cases discussed in chapters 3 and 13 of your text. A consideration of significance
could include:
What appeals brought the case before the Federal Court as regards the
$11,600,000 Payment.
Whether the case makes new law.
Whether the case criticises previous law.
What the case says about the current state of the law in this area.
Whether and how the case applies the law to novel fact situations.
Why did the Commissioner defend this case? Is there a strategic element?
Whether the case will impact on commercial practice.
What is the impact, if any, of the appeal decision of the Full Federal Court Sent v
FCT [2012] FCAFC 187 (19 December 2012) located at
http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/187.html ? Does it refine,
revisit or restrict the Federal Court’s considerations as regards the tax treatment of
the $11,600,000 Payment.
CLAW 3201 Australian taxation system Due: Monday 22 April by 9 am
Case analysis and comment
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Some guidance and suggestions
Purpose and expectations of assessment
The basic concept underpinning this item of assessment is that students approach the
task as if they are doing a well written extended exam answer. The time constraints
are in place to mimic what would happen in practice when a significant court decision
is handed down.
Research is expected to support your discussion of the impact and relevance of the
decision.
Students will be expected to reference their assertions and properly cite the cases and
statutory provisions they use. Layout, presentation, written expression and attention to
detail in proof reading are also matters that are included in the marking criteria. These
will be elaborated on in the following instructions.
Summary of rules:
Note the due date and time, it will be strictly applied.
Due: Monday 22 April by 9am. Submission will be electronic via Turnitin on
Blackboard.
Late work will not be accepted after 1 week from the due date, unless an extension
has been granted.
Clearly indicate whether the paper is submitted as joint or individual.
A joint paper can be submitted by any 2 persons enrolled in CLAW3201
regardless of what tutorial class each person is in.
Individual and joint assignments will be marked according to identical criteria.
Expression, citation, layout, presentation, evidence of proof reading and
referencing are taken into account when awarding marks.
Your work must include a bibliography.
Keep a copy of what you submit.
Plagiarism and other academic misconduct will be prosecuted and penalised: see
following heading for further details.
Remember the rules and procedures to be followed if you apply for an extension
or special consideration.
All correspondence must identify the student by name and include their
Student Number.
A list of annotated links to assist students with academic writing and literacy has
been produced in a collaborative project with the University’s Learning Centre.
To be found at:
http://www.usyd.edu.au/stuserv/documents/learning_centre/AnnotatedWebsites/A
Wwelcome.html
Other basic style and layout resources may be found at:
CLAW 3201 Australian taxation system Due: Monday 22 April by 9 am
Case analysis and comment
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http://www.library.usyd.edu.au/libraries/law/citation.html Guides to Legal
Citation
http://www.library.usyd.edu.au/libraries/law/abbreviations.html Legal
Abbreviations
Your paper must be typed in at least 12 point size font and be 1.5 spaced. The less
space you leave us to write on the less feedback we can provide.
Headings assist understanding and readability.
The word length of 1,000 words will be enforced. Word length includes material
in the body of the paper, footnotes, endnotes and appendices but not any
Bibliography or Reference List. References and citations will be counted as one
word.
Suggestions on the approach to take in answering the paper
Issue identification is very important.
You are expected to reason your analysis clearly in your own words and support
it by references to primary materials [cases and statutory provisions] and
secondary sources, where appropriate [textbooks, journal articles and the like].
If you explain a legal principle or set out relevant facts in one place there is no
need to repeat that explanation, you can refer to the explanation in other areas of
the essay and set out how it applies to the other situation along with any further
comments.
Research will be required to contextualise the case in terms of the impact of the
decision and the ATO’s response. Students who support their answers well and
from more than one source would be expected to obtain better marks than those
that do not.
Referencing and citation: Consistency is important not the style of footnote or
reference. The way I and articles, texts and cases reference should be used as a
guide. Case names are in italics. Where we cite a case as explained in a textbook
we say case ‘X’ as cited in textbook ‘Y’ at page ‘Z’. All references in law must
be to a page. The Australian Guide to Legal Citation published by the
Melbourne University Law Review Association Inc is a really good guide to
citation, having many useful examples. A copy of the ALGC can be found at:
http://www.law.unimelb.edu.au/mulr/aglc/about
Referencing examples:
Texts: HAJ Ford, RP Austin and IM Ramsay, Ford’s Principles of Corporations
Law, 12 th ed, LexisNexis Butterworths, 2005
Articles: Brett Bondfield, “If there is an art to taxation the Simplified Tax System
is a dark art” (2002) 17 Australian Tax Forum 313
Cases: Students should take care with the use of square brackets [ ] and round
brackets ( ) when citing cases. Square brackets are used when the year is an
essential part of the citation: e.g. Donoghue v Stevenson [1932] AC 562. Where a
case depends on its volume number for its place in a series of law reports, its date
CLAW 3201 Australian taxation system Due: Monday 22 April by 9 am
Case analysis and comment
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should also be given, but in round brackets: e.g L. Shaddock & Associates Pty Ltd
v Parramatta City Council (1981) 150 CLR 225
We are seeking you to support your answer when we require you to reference your
work. Well supported answers will be awarded higher marks.
There is no reason students can’t discuss the work between them. But you must
submit your own work. I.e. discuss all you like but go away and write it up by
yourselves.
CLAW 3201 Australian taxation system Due: Monday 22 April by 9 am
Case analysis and comment
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Assignment Rationale and Grading Guide
Rationale:
The aims of this task are:
to display professional time management skills;
to demonstrate focussed learning and research on particular topics raised in the
cases and question;
to apply legal knowledge and reasoning to identify and rank the legal issues
raised;
to evaluate and apply evidence;
to organise your thoughts into a coherent and logically arranged analysis;
to present your argument (in written essay form) to a reader; and
to demonstrate formal legal writing and referencing skills.
Grading:
Essays will be graded from Fail, Pass, Credit, Distinction to High
Distinction.
A Fail grade [0-49%] means there are too many significant faults with the paper
for it to be of University standard. I suggest you check your feedback on your
paper and this answer guide to see where the problem(s) lie and if necessary seek
clarification from the unit coordinator.
A Pass grade [50-64%] is a satisfactory achievement of all objectives. You are
advised to make sure you understand what the essay is lacking and if necessary
seek help improve in those areas. In particular, you may have to further develop
the ability to identify relevant legal issues raised on the facts, focus your
discussion on the most important issues, as well as writing analytically [applying
the law to the facts to reach a reasoned conclusion] rather than just descriptively.
A Credit grade [65-74%] signifies an essay of good quality showing more than
satisfactory achievement on all objectives, or work of superior quality on most of
the objectives. For example it may have identified some (but not all) relevant legal
issues raised on the facts, not placed sufficient emphasis on the most important
issues, had some well argued legal analysis and be without serious faults, but
without flair, OR it may be an essay with some flair but too many faults.
A Distinction grade [75-84%] essay is of superior quality on all objectives,
demonstrating a sound grasp of content, together with efficient organisation and
selectivity. It will be almost flawless, well argued and supported with relevant
cases and statutory provisions and be very well referenced [something extra
beyond the predictable].
CLAW 3201 Australian taxation system Due: Monday 22 April by 9 am
Case analysis and comment
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A High Distinction grade [85-100%] will mean you have produced work of
outstanding quality on all objectives which may be demonstrated by means of
comprehensive issue identification and ranking, logical argument and clearly
articulated legal analysis, identification and application of relevant legal principles
and clear interpretation of materials. This grade may also be given to recognise
particular originality or creativity. It is based on demonstrated understanding of
legal principles and legal method and is very well written and referenced.
