John W Fickling

John W Fickling

Barrister - John Toohey Chambers, Western Australian Bar

Telephone: +61 8 6315 3356

Mobile: +61 449 982 464

Email:

jwfickling@wentworthchambers.com.au

Available for tax advice and tax advocacy

Websites:

• • • WABA

    • John Toohey Chambers

    • Linkedin

John Fickling is a barrister at the Western Australian Bar, specialising in taxation law and taxation law matters also involving contractual, corporations, constitutional and administrative law issues.  John appears in matters, provides taxation law advice, drafts correspondence and submissions and negotiates settlements for and against the revenue authorities.

John has practised in taxation law for 14 years, four of which were spent in London providing time-sensitive and commercially driven taxation advice to US and European global investment banks on cross-border acquisitions, financing, restructures and capital raisings.

At the Bar, working closely with instructing solicitors, accountants and clients, John's practice includes:

* Successful and final resolution of several >$15m tax disputes through (a) negotiation without court proceedings and (b) commencing proceedings, litigation and negotiation, achieving negotiated and final resolution for the taxpayers, preserving and defending taxpayer's asset status quo whilst dispute was continuing and thereby saving the taxpayers from the risk of bankruptcy by the ATO.

* Successful and final resolution of smaller tax disputes including interest remission disputes and tax residency disputes.

* Successfully and final resolution of tax disputes through commencing judicial review proceedings and advancing constitutional protection arguments.

* Seeking to preserve client taxpayers' constitutional guarantee to dispute amended assessments and where necessary, successfully obtaining stay of judgment orders.

* Appearance in constitutional disputes involving trade and taxation in the High Court of Australia and the Full Federal Court as lead counsel and as junior to Queen's Counsel. 

* Advice on the potential application of and taxpayer defence strategies for Part IVA including regularly working with Queen's Counsel.

* Drafting submissions and negotiating with the ATO in respect of the issue of rulings for complex financial products and corporate restructures.

John holds a Master of Laws with first class honours, in corporate and international taxation law, and is a recipient of the Advanced Taxation Law prize from the University of Melbourne Law School. John has lectured and tutored in taxation law at the University of Melbourne and University of Western Australia and has presented at seminars on cross-border tax structuring in Australia, London and NY.

John accepts briefs from law firms, accountants, corporations, individuals and government.  Where a matter calls for the filing of proceedings before a court, a firm of solicitors will need to be retained.

Recent decisions and publications (see larger list on Linkedin)

• The Engineering Manager and Commissioner of Taxation [2014] AATA 969 - tax residency - counsel for the taxpayer - Administrative Appeals Tribunal, 24 December 2014.

• LexisNexis Australian Tax Law Bulletin, "Individual Residency and the Offshore Worker", February 2015.

• HVZZ and Commissioner of Taxation [2015] AATA 133 - Division 35, Commissioner's exercise of the Discretion in sub-section 35-55(1)(c), scope of a Private Ruling Scheme - counsel for the taxpayer - Administrative Appeals Tribunal, 5 March 2015.

• LexisNexis Australian Tax Law Bulletin, "Division 35 non-commercial losses — one tax rule for those whose taxable income is under $250,000 and no tax rule for those whose taxable income equals or exceeds $250,000" | Part I: Application | Part II: Recent Cases (July and August 2015).

• LexisNexis Australian Tax Law Bulletin, "Patchy Evidence and the Part IVC Objection Process" (October 2015).

• Keris Pty Ltd (Trustee) v Deputy Commissioner of Taxation [2015] FCA 1381 (4 December 2015) - security bond demand - notice to provide security under s. 255-100 in Schedule 1 to the Taxation Administration 1953 (Cth) - Constitutional validity s. 51(ii), s. 51(xxxi) - counsel for the taxpayer - Federal Court of Australia, 4 December 2015 (appeal pending to the Full Court of the Federal Court, decision reserved).

• PFGG and Commissioner of Taxation (Taxation) [2015] AATA 972 (16 December 2015) - 50% capital gains tax “active assets” reduction - counsel for the taxpayer - Administrative Appeals Tribunal, 16 December 2015 (appeal pending to the Full Court of the Federal Court, decision reserved).

• LexisNexis Australian Tax Law Bulletin, "Are there any restrictions on the use of the Commissioner of illicitly obtained information in rendering assessments?" (February 2016).

• LexisNexis Australian Tax Law Bulletin, "The fundamental importance of constitutional rights and non-tax High Court jurisprudence in litigating federal tax cases" (April 2016).

• Independent Contractors Australia & Anor v The Road Safety Remuneration Tribunal [2016] HCATrans 86 (15 April 2016) - counsel for the Applicants - High Court of Australia - Original Jurisdiction Writ against Road Safety Remuneration Tribunal order challenging the order (an administrative decision) on grounds that it was contrary to the guarantee of freedom of interstate trade pursuant to s. 92 of the Constitution - remitted to Federal Court.  Three days later on 18 April 2016 the Parliament of the Commonwealth of Australia introduced and passed the Road Safety Remuneration Repeal Act thereby abolishing the Road Safety Renumeration Tribunal and the order.

• Featherby v Commissioner of Taxation [2016] FCA 454 (3 May 2016) and (No 2) [2016] FCA 465 (6 May 2016) - counsel for the Applicant - Federal Court of Australia - case stated as to availability of s. 39B Judiciary Act / s. 75(v) Constitution judicial review of a purportedly invalid fraud and evasion opinion for an assessment corrected by a subsequent s. 171 deemed amended assessment - both decisions appealed by Applicant with an indication it would be referred to the Full Court for determination where the docket judge in a preliminary hearing for the appeal noted the case "does have a systemic ramification as far as the operation of the legislation is concerned and the Commissioner’s administration of it", and that "[t]here is at least one, and probably many more, open questions as yet, and it is truly an interesting case", but less than 2 weeks later appeal discontinued by all parties by consent, and all other matters pending discontinued by all parties by consent, with no order as to costs.

• Shord v Commissioner of Taxation [2016] FCA 761 (29 June 2016) - counsel for the Applicant - Federal Court of Australia - section 44 appeal from Tribunal - meaning of "employee" for s. 23AG and the operation of the burden of proof provision in s. 14ZZK and s. 14ZZO (appeal pending to the Full Court of the Federal Court of Australia)

• Commissioner of Taxation v Bosanac [2016] FCA 448 (29 April 2016) and (No 2) [2016] FCA 945 (12 August 2016) - counsel for the Respondent Taxpayers - Federal Court of Australia - summary judgment. Subsequent to [2016] FCA 448 Mrs Bosanac's judgment reduced from $5.7m to less than $0.3m on Commissioner's objection decision as noted at paragraph [11] in (No 2) [2016] FCA 945 and Mr Bosanac's judgment stayed pending the further order of the Court whilst Part IVC tax appeal as to quantum of tax liability underway in (No 2) [2016] FCA 945.

• LexisNexis Australian Tax Law Bulletin, "Constitutional judicial review of an invalid fraud and evasion opinion: targeted, direct and specific" (August 2016).

• LexisNexis Australian Tax Law Bulletin, "Superannuation “reforms”: a short sighted, silo-based, sledgehammer approach of an unascertained cost to the nation’s superannuation system and national economic security? " (September 2016) (As they were proposed prior to the Commonwealth Government announcement of 15 September 2016).

• LexisNexis Australian Tax Law Bulletin, "Bywater Investments v Commissioner of Taxation [2016] HCA 45: Be alert, not alarmed" (December 2016).

Contact us: please contact any of the barristers on this list individually or jointly. Barristers may be briefed individually or jointly through a law firm, accounting firm, government agency, or directly in many circumstances. Please feel free to contact any barrister directly for a confidential discussion.

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