The certainty of tax in insolvency : where does the ATO fit?

Brown, Catherine, Anderson, Colin, & Morrison, David (2011) The certainty of tax in insolvency : where does the ATO fit? Insolvency Law Journal, 19(2), pp. 108-122.

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There are several ways that the Commissioner of Taxation may indirectly obtain priority over unsecured creditors. This is contrary to the principle of pari passu, a principle endorsed by the 1988 Harmer Report as one that is a fundamental objective of the law of insolvency. As the law and practice of Australia's taxation regime evolves, the law is being drafted in a manner that is inconsistent with the principle of pari passu. The natural consequence of this development is that it places at risk the capacity of corporate and bankruptcy laws to coexist and cooperate with taxation laws. This article posits that undermining the consistency of Commonwealth legislative objectives is undesirable. The authors suggest that one means of addressing the inconsistency is to examine whether there is a clearly aligned theoretical basis for the development of these areas of law and the extent that alignment addresses these inconsistencies. This forms the basis for the recommendations made around such inconsistencies using statutory priorities as an exemplar.

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ID Code: 46538
Item Type: Journal Article
Refereed: Yes
Keywords: Insolvency, Taxation, Pari Passu priority, GST and incapacitated entities, ATO garnishee notices
ISSN: 1039-3293
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Corporations and Associations Law (180109)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Copyright Owner: Copyright 2011 Thomson Reuters (Australia/NZ)
Deposited On: 20 Oct 2011 00:51
Last Modified: 22 Jun 2017 18:08

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