Pagone, G. T., Melbourne University Law Review
[Lawyers are taught to appreciate the value of certainty in the law. In the field of taxation, however, the law is often far from certain. This article examines some of the causes of uncertainty within tax law, including the inherent uncertainty of language, the mismatch between the lawyer's tools of statutory interpretation and a tax statute drafted using an economic or accounting understanding of tax concepts, differing judicial constructions of tax statutes, and the intentional uncertainty in the drafting of tax statutes to allow for discretion or to prevent tax avoidance. It is argued that community consultation and bodies such as a specialist tax tribunal may reduce uncertainty and allow the community to make an informed choice as to the desired level of uncertainty within tax law.]
CONTENTS I Certainty II Uncertainty in Tax Law A Capital and Income: Economic and Accounting Standards versus Legal Analysis B Judicial Construction of Tax Statutes C Uncertainty by Design, Discretion and Notions of Anti-Avoidance III Possible Institutional Change to Address Tax Uncertainty IV Conclusion Whoever hopes a faultless tax to see, Hopes what ne'er was, or is, or e'er shall be. (1)
At some point in a law course, every law student is taught about the importance of certainty in the law. At some point in a lawyer's career, every lawyer in every area of legal practice comes to appreciate the necessity of certainty in the law. Certainty is the foundation of the lawyer's craft and is, perhaps, the only contribution that makes us useful to clients and society. It is the lawyer's ability to predict the application of the law that helps us organise relations between people in their personal affairs, business relations and dealings with government. Without a reliable degree of certainty, contracts would be worthless and ongoing ordinary relations and dealings would be at risk of whim and fancy. Certainty in the law is fundamental to the rule of law, which holds that law 'should be clear, easily accessible, comprehensible, prospective rather than retrospective, and relatively stable.' (2) It is with that frame of mind that I turn to taxation.
11 UNCERTAINTY IN TAX LAW
There is a curious entry, some may say a curiously candid entry, under the heading 'Taxation' in The Oxford Companion to Law. (3) The first two and the last two sentences describe taxation as follows:
Traditionally the principal way in which the ruling classes in organized communities have oppressed, fleeced, and expropriated some of their subjects. It has been known from very early times, and from the earliest times the tax-gatherer has been an object of public fear, hatred, and execration.... Not the least evil features of the modern tax system are the army of unproductive civil servants concerned with the assessing and collecting of taxes, the enormous volume and constantly changing detail of the chaotic and largely incomprehensible body of verbiage called the law of taxation, the incomprehensible and frequently incorrect assessments, and the utterly irrational nature of the whole topic. In the law of taxation justice has no place at all. (4)
Some may think this an extreme view. Perhaps it is, but it gives us a context in which to evaluate the role of certainty in tax law. Tax falls upon us in the ordinary course of our activities as a compulsory taking (5) from us of something that we, by definition, have earned or owned. How and when that may happen should be clear, predictable and free from whim, caprice or chance. Below, I reflect upon some causes of uncertainty in tax law and whether this uncertainty is desirable or deliberate. In doing so I should make it clear that 1 hold no hope for certainty in tax law in the future. Ten years ago, the Review of Business Taxation, in A Tax System Redesigned: More Certain, Equitable and Durable--Report ('Ralph Report'), recommended that reform to the anti-avoidance provisions 'be based around a clear articulation of the underlying policy of a restructured tax law'. …