Article: LexisNexis Australian Tax Law Bulletin 3-6 "Constitutional judicial review of an invalid fraud and evasion opinion: targeted, direct and specific" ![]() Increasingly, tax advisors will be faced with the now
not unusual scenario that they represent a citizen client
who has been issued, or is about to be issued, with an
amended assessment by the Commissioner of Taxation
(the Commissioner) where that amended assessment
will be issued out of time of the 2 year or 4 year limit
given to the Commissioner to amend assessments, purportedly
pursuant to the “fraud and evasion power”
contained in item 5 of s 170(1) of the Income Tax
Assessment Act 1936 (Cth) (ITAA 1936). In order to
invoke the fraud and evasion power, the Commissioner
must form an opinion, i.e. his opinion, that there must
have been “fraud” or “evasion” infecting the particular
assessment (the F&E Opinion). If that F&E Opinion is
jurisdictionally valid then the assessment will prima
facie be valid. If that F&E Opinion is jurisdictionally
invalid, there will be no statutory power to issue the
assessment. Applicable to the following situation:
What can be done to address the situation?
How is the situation addressed?
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