We have a dedicated team that regularly acts for clients in significant and complex tax disputes. These involve both pre-litigation assistance and court-related work. Over many years, we have developed a high-level of expertise in dealing with financially significant and complex tax disputes.

Freehills have acted in a number of landmark cases at all levels in the judicial process and have also successfully resolved a significant number of major disputes on behalf of clients directly with the Australian Taxation Office (ATO).

Our tax litigation and dispute resolution services span all stages of disputes including:

• managing and advising on tax audits, tax risk reviews and information requests or demands. We have extensive experience in dealing with the ATO on such matters
• advising on objection and appeal processes and strategies
• advising on taxation disputes and related issues
• conducting alternative dispute resolution with the ATO
• making submissions and presenting them before the GAAR (Part IVA) Panel.

Our team works closely with our associated tax advisory firm Greenwoods & Freehills. We also have strong associations with the taxation industry. Andrew Mills, a director of Greenwoods & Freehills, is a past president of the Tax Institute of Australia and is currently on its New South Wales State Council. Tim Neilson, also a director of Greenwoods & Freehills, is currently on the Victorian State Council.  In addition, we are:

• members of the Tax Institute of Australia
• members of the Federal Court Tax Users Group, and
• regular presenters (by invitation) at seminars hosted by various professional bodies.

Examples of our tax dispute work include:

Part IVA

• Metal Manufacturers/Eastern Nitrogen – acting for a successful taxpayer in a landmark Part IVA case.
• Network Ten – acting in a complex, high value Part IVA case which was advantageously settled early in the proceedings.

Confidential clients:

• Making representations on behalf of a client, in a current complex, high-value audit, before the GAAR (Part IVA) Panel.
• Acting for a major listed company group facilitating the successful resolution of a substantial dispute with the ATO concerning the tax treatment of a group refinancing. The ATO had made Part IVA determinations and issued amended assessments.
• We have assisted (and continue to assist) various clients with ATO reviews on audits, including in relation to Part IVA.
• Acting for a multinational group in relation to a threatened Part IVA determination for more than A$200 million and negotiating a very favourable outcome prior to the issue of amended assessments.
• Ongoing matters for taxpayers in substantial disputes with the ATO concerning Part IVA.
  

Non Part IVA

• CityLink Melbourne Limited – we acted for the client in relation to litigation concerning the tax deductibility of annual concession fees levied by the State of Victoria in return for the right to conduct the CityLink toll road. A key issue in the case was whether the character of the concession fee was capital or revenue. The litigation was conducted in the Federal and High Courts of Australia. The High Court found that the whole of the concession fee was of revenue character, and was immediately deductible in the year in which each annual fee was levied.
• ERA – acted for ERA, a subsidiary of Rio Tinto, in a long running dispute with the ATO over the valuation of trading stock at its Ranger mine site. The case arose, in part, from the unique statutory framework governing ERA's operations at Ranger and whether some of the costs incurred by ERA to comply with its statutory obligations, though not direct production costs, should be included in the cost of its trading stock. ERA was successful both at trial and on appeal.
• MLC – acted for the successful taxpayers in an important case for the property industry involving the tax treatment of building allowance.
• ISPT Pty Limited and ISPT Nominees Pty Limited – acted for the successful taxpayers in disputes with the Chief Commissioner of Stamp Duties (NSW) relating to Claytons contract provisions and conveyances between trustees.
• MLC Investments – acted successfully for this leading funds manager in a case that has major ramifications for the commissioner's practice of issuing rulings as to how he will exercise tax legislation discretions.
• Westralia Airport Corporation – obtained a favourable decision in relation to a dispute concerning land rich stamp duty on the sale of shares in a company controlling the Perth airport, involving a number of actions in the Western Australian Supreme Court.
• Australasian Feeds Pty Ltd – successfully acted in the Administrative Appeals Tribunal and on appeal to the Federal Court in an important case on carry forward losses and the same business test.
• Burswood Casino – obtained a favourable settlement in relation to a substantial claim concerning the application of section 255 of the Income Tax Assessment Act 1936 (Cth) to payments made to non-resident organisers of gambling holidays.

Confidential clients:

• Acting for a major bank industry superannuation fund in challenging significant imposts of superannuation surcharge on members transferring from a traditional defined benefits division to a newly modernised accumulation division of the fund.
• Facilitating a favourable settlement in relation to a decision to impose general interest charge after commencing a review in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
• Acting for a US-based corporation and its Australian subsidiary in relation to proper application of double tax treaty and payments to an overseas entity.
• Acting for a member of the mining industry in relation to fringe benefits tax.

The ATO is increasingly making use of Part IVA in order to minimise incidents of tax avoidance and overly aggressive tax planning. The Taxation Commissioner has also indicated that identifying and investigating fraudulent goods and services tax claims is a high priority for the ATO. 

In addition, a significant number of taxation disputes continue to involve the general income and deduction provisions.

Our team regularly deals with disputes in these areas through pre-litigation assistance and court-related work. We also recognise the importance of maintaining close ties with members of the taxation industry. These relationships enhance our expertise and the depth of advice we provide to our clients.

We work closely with Greenwoods & Freehills. Freehills and Greenwoods & Freehills have achieved the following:

Legal guides

• Chambers Global, top tier ranking in Tax, 2008-2011 
• Chambers Global, top tier ranking in Dispute Resolution, 2006–2008 and 2011
• Asia-Pacific Legal 500, top tier ranking in Dispute Resolution 2004-2011
• Best Lawyers International, top-listed firm in Australia inLitigation, 2008–2011
• PLC Which Lawyer?, ‘Highly recommended’ firm in Tax, 2007-2010 
• PLC Which Lawyer?, leading firm in Dispute Resolution, 2006–2008 and 2010

Testimonials

• ‘The outstanding litigation team is co-ordinated, pragmatic, strategic and timely.’ ‘They maintain a culture which is not about making money but rather about providing top-quality service to their clients.’ Chambers Asia Pacific 2011
• Freehills ‘combines the clever thinking of smaller firms with the depth and breadth of a very large one’ Asia Pacific Legal 500 2010/2011
• ‘They focus on the outcomes to be achieved rather than the process. They don't think one or two steps ahead – their advice is always what will happen three or four steps ahead.’ Chambers Global 2010
• ‘The Dispute Resolution team at Freehills remains a strong choice for complex commercial disputes.’ Chambers Global 2009 
• ‘… client access to partners is unparalleled’ Chambers Global 2008 
• ‘… the team’s “service and commerciality set it apart from other firms”’, Chambers Global 2008