TAXATION LAW - INSTRUCTIONS FOR THE RESEARCH ASSIGNMENT
1. ASSIGNMENT DETAILS
In this assignment, you are required to complete an objection to an assessment by the Australian Tax Office (ATO) using the ATO 'Objection form (tax professionals)' available at www.ato.gov.au and a covering Memorandum of Advice which is to be addressed to your senior partner. The details of the assignment problem are in the Assessment folder in QUT Blackboard.
YOU MUST COMPLETE THIS ASSESSMENT INDIVIDUALLY.
Your 'Reasons for Objection' and Memorandum of Advice must comply with the Written Assessment in the Law School: Legal citation (WALS)(refer link in your QUT Blackboard Assessment folder). Part 1 of the WALS provides that unless otherwise specified, your written assessment is to be formatted as follows:
- Times New Roman or Arial font in 12 point
- 1.5 line spacing
- Page margins at a minimum of 2.5 cm (left, right, top and bottom)
Furthermore, your written assessment must comply with the prescribed word limit. There is no 10% margin the Law School - the word limits are imposed strictly.
2. COMPLETING THE OBJECTION FORM
You must complete an Objection form (For tax professionals) which complies with the relevant taxation legislation. The form is available at the Objections, amendments & reviews section of the Australian Taxation Office (ATO) website and is linked to the LWB364 Blackboard site.
You are required to complete the entire form as part of your overall assessment. However, the word limit relates ONLY to Part 12 'What are the reasons for the objection'.
Part 12 of the form requires that you provide reasons for the objection. This is the key part of the objection form and requires that you clearly state the reasons that the ATO has incorrectly decided to amend your client's tax assessment. In this part you must clearly state the reasons you consider the decision is incorrect, including the relevant facts, arguments and information you have to support the case. Your arguments must be supported by relevant law. Therefore, your 'Reasons for the objection' should be appropriately referenced. This means that if you are quoting or paraphrasing a principle from a case, text book or website you should provide a reference indicating the source. This may be done by footnote or in the body of the answer. However, when preparing your objection, do not place substantive material (i.e., material that is directly relevant to building your legal argument) in the footnotes.
Part 13 of the form requires that you list details of information, documents or evidence to support the claims made in Part 12. For the purposes of this assessment you are to assume that your client has whatever supporting documentation is required and that no documentation has previously been provided to the ATO. Therefore, you need to list the documents you will supply to the ATO (as assumed) but do not need to provide actual copies of these documents. The aim is to show your knowledge of what must be provided under the substantiation provisions of the taxation legislation.
3. COMPLETING THE MEMORANDUM OF ADVICE
You are to draft a memorandum of advice to your senior partner which includes the following (as stated in the assignment question):
- A BRIEF explanation of the service process for a notice of assessment (amended assessment).
- Whether, in your professional opinion, the objection made on the client's behalf will or will not be successful, and your reasons for those conclusions.
- A list of objections not made on behalf of the client (if any) and your full and detailed reasons for not including these matters.
- Your advice as to what the client needs to do next. In particular, you should include advice as to what (if anything) the client might need to do in relation to amending the tax return that she submitted for the financial year.
- Any further information you believe is required from the client.
Do not repeat information in both the reasons for the objection and the memorandum of advice. Remember that the memorandum of advice is a document that you are preparing for the senior partner, who will also read the objection. To help you work out what document to put information in, think of it this way:
- If you are disagreeing with the Commissioner, and therefore objecting to the Commissioner's decision - place your reasoning (in full) in the "reasons for the objection".
- If you are agreeing with the Commissioner, and there is no real argument you can make on your client's behalf - then explain your reasons (in full) in the memorandum of advice. You do not object when it is clear that the Commissioner is correct.
- If you are objecting to the Commissioner's decision, but it is not clear whether or not your objection is likely to be successful, for example because the area of law is uncertain or because you consider your argument is comparatively weak but you believe an objectionneeds to be raised - then you should object to the matter and include the reasons in the objection form but also provide further details in the memorandum of advice as to the likelihood of succeeding based on your informed professional judgment.
You are required to provide a very brief explanation of the service requirements.
If, while drafting the objection, you determine that you need specific information from the client - you can draft the objection on the assumption that you will receive that information but specifically indicate what information is required in the memorandum of advice. This will then inform your senior partner as to any assumptions you have made in drafting your objection document.
Finally, remember that a memorandum of advice is a document advising the senior partner of the issues your client is currently facing, and your advice on those issues. Therefore you must provide a carefully thought out legal discussion of the client's issues, your reasons for the advice you have provided and authorities that support your reasons. This means that your memorandum of advice must be properly referenced. In other words, you should provide footnotes in your memo document as you would reference any other law assignment.
4. ADDITIONAL INFORMATION ON THE OBJECTIONS PROCESS
The following readings on the assessment and objections process, including the penalty provisions, might assist in completing this assessment:
- The ATO website - particularly Taxation Ruling TR 2011/5 and more generally under the heading "Compliance Issues", then "Objections, amendments and reviews"
- Chapter 16 - Kobetsky et al, "Income Tax: Text, Materials and Essential Cases"
- Chapters 25, 28 and 29 - Australian Premium Master Tax Guide (available through CCH online via the QUT library)
- Chapters 47-48 and 54 - Australian Tax Handbook (Westlaw online via the QUT Library)
Words:- 3000
Reference:- Harvard 20
Attachment:- Assignment.rar