taxation law

TLAW603 – Taxation Law & Practice

A guide to reading and analysing case law

Steps Questions Guidance Preliminary What are you reading? Are you reading a case from a law report series or from an

online database? Are you reading a case extract from a textbook? What is the difference? Why does it matter?

First reading – reading for the context

In which court was the case decided?

Was it a decision of the AAT? The federal court? The High Court? Was it a decision of a foreign court outside Australia? Where does the court fit in the Australian court hierarchy? Will the decision of this court be binding?

In which court did the case begin?

Is this a decision at first instance? (i.e the first time a court has made a decision in the matter?) Or is this an appeal from a lower court?

What are the names of the parties?

Who commenced the legal proceedings? Who is the plaintiff and who is the defendant? Or, in an appeal, who is the appellant and who is the respondent? Are the parties individuals? Corporations? The Commissioner of Taxation or another Government agency? The State (e.g. Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59 a decision regarding state imposts but dealing with the legal concept of goodwill which applies equally in income tax matters including capital gains tax).

What are the names of the judges?

How many judges decided the case? Who are the judges? What do you know about the judges? Did each judge give a separate judgment? For example, Justice Gordon is an eminent jurist who sits on the High Court of Australia. She was a Federal Court judge during the time at which Justice Edmonds presided over many Federal Court tax matters. Many of the decisions made by Justice Gordon were often overturned on appeal by Justice Edmonds as a result of legal rivalry. Justice Graeme Hill was an eminent judge and legal scholar. He formerly taught at the University of Sydney Law School, primarily on GST. He passed away many years ago, but has left a legacy of legal scholarship which we still rely on to this day.

What is the date of this decision?

When was the case decided? What was the social/political/legal environment at the time? Has the social/political/legal environment changed since the case was decided?

Is there a ‘headnote’ or ‘catchwords’?

The headnote may provide a useful summary of the facts and/or the decision. A headnote is convenient but may not be comprehensive or entirely accurate. The catchwords may give you the basic facts and the relevant law involved in the case.

Is there a list of cases and/or legislation cited in this decision?

What are the cases? What is the legislation? What do you know about the cases and the legislation? (The list of cases and/or legislation, if any, will appear at the beginning of the

Steps Questions Guidance case)

What order did the court make?

Did the court find for the plaintiff or the defendant? Or, if the case is an appeal, was the appeal allowed or dismissed? (The order of the court may be given at the beginning or at the end of the case).

Second reading

Consider the structure of the case

Are there any useful headings in the judgments? There is no prescribed order but generally, cases are set out as follows:

• overview of the facts; • outline of previous legal proceedings (if any); • the legal issue(s) or dispute in this case; • discussion of the relevant law (previous cases and/or

legislation); • reasoning of the judge in relation to the legal issue(s) and

applicable law; • decision.

Are you interested in the whole range of issues considered by the court or are you interested in only one of the issues dealt with in the case? Why are you reading the case? If you are only interested in issues relating to tax liability, consider whether you need to read the entire case or only those parts of the case that deal with tax liability (and not read those parts of the case that deal with, for example, procedural matters or the appropriate penalty or remedy).

– reading for an overview

Consider the words used in the case

Do any of the words or phrases used have a technical legal meaning? Are any Latin terms used? Where will you look to find the legal meaning of these words phrases and terms? Is there any dispute about the legal meaning of any words or phrases?

Think about the facts What happened? To whom? Listing the facts in chronological order or drawing a diagram may help to clarify what happened and to whom. Is there a dispute about what happened? Do the parties agree on all the facts? Are there any issues of fact? How does the court resolve any issues of fact? In relation to the facts, consider the role of the jury (if any) and the role of an appellate court.

Think about the legal proceedings

What is the order this court is being asked to make? If the case is an appeal, who won in the court below? The plaintiff or the defendant?

Who appealed? Why is the case before another court?

Identify the legal issue(s) raised by the facts

Why is this case in this court? What legal question(s) is the court being asked to consider?

Steps Questions Guidance Third and subsequent readings – reading for analysis

What are the material facts Distinguish relevant facts from irrelevant facts. Which facts influenced the court’s decision?

of the case?

What was the court’s How did the court resolve/answer the legal question(s)? What is the decision of the court? decision on the legal

issue(s)? What reason(s) did the court give for the decision?

Consider the court’s reasoning • What earlier cases did the judge consider to be relevant and

applicable to this decision? Why were these cases considered to be relevant/applicable to deciding this case?

• What earlier cases did the judge consider to be irrelevant and inapplicable to this decision? Why were these cases considered to be irrelevant/inapplicable to deciding this case?

• What rules from earlier cases, if any, did the judge apply or follow in this case?

• What rules from earlier cases, if any, did the judge not follow or distinguish in this case? (Does the judge use factual differences in earlier cases as justification for not following the rule in the earlier case?)

• Does the judge make any observations that are not necessary to support this decision? (Does the judge refer to or discuss a hypothetical situation?)

• Distinguish between legal rules and statements directly involved with the judge’s decision (ratio) and those not directly involved with the judge’s decision (obiter dicta). Why do you need to do this?

• The ratio may contain the reasons for the rule (why it was formed, why it is being modified, why it is desirable or necessary) and the application of the rule ( why the rule applies or does not apply to the facts of this case).

• Does the judge give more than one reason for the decision? • If there is more than one judge in this court:

o Was the court’s decision unanimous? o Was there a strong dissenting judgment? o Did all the judges reach the same decision? o Did all judges use the same reasoning to reach the

same decision? o What difference, if any, is there in the reasoning of the

different judges? • Pay particular attention to the use of extrinsic materials by the

Courts, particularly in tax cases. For example, in some of the most important transfer pricing and DTA cases in Australia, the Court’s often refer to material from the OECD including the OECD Model Treaty, the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrators. The Acts Interpretation Act permits the use of extrinsic materials in certain circumstances.

What is the legal rule arising • Can you identify a few lines in the judgment that give the legal rule?

• Or is the rule implied in the judgment? • How can you state the legal rule from this case?

from the court’s decision?

Steps Questions Guidance What do you think about this case?

• What is your opinion of the decision of the case? • What is the rationale or underlying policy of the

decision? What are the consequences of this case? • What is your view of the scope of the rule? How might the rule

from this case be restated more narrowly? more generally? • How might the rule from this case be used in later cases in

other circumstances? Can the rule apply to different facts? • Are there any issues left unresolved by this case? If so, what are

they?