Advocacy in Tax Cases: A View from the Bench

2022 Australian Bar Association National Conference

Chief Justice Allsop 29 April 2022

Description: Having sat across state and federal tax matters as Chief Justice of the Federal Court of Australia and formerly as President of the New South Wales Court of Appeal, the Honourable Chief Justice James Allsop has a unique perspective on effective trial and appellate advocacy in tax cases. Chief Justice Allsop will address attendees on the skilled and faithful propounding of the rights of the client at trial and on appeal in both written and oral submissions. 

Title: The forgotten relationship and don’t play games

Introduction

The fundamentals of advocacy have, understandably, received detailed treatment in numerous lectures, papers, books and the like. It is not my intention to add another restatement of those principles to this extensive collection.

Rather, I would like to entitle this speech “the forgotten relationship and don’t play games”. This title seeks to emphasise two fundamental points of advocacy generally, but which have particular application in the context of tax cases. They draw upon some of my experiences on the Bench in both the Court of Appeal and the Federal Court.

First, I wish to emphasise the commonality of a number of features advocacy in tax cases with advocacy in general, which at times appear to be forgotten. In particular, I want to focus on the “forgotten relationship” between written and oral submissions. Let me pose this: Your written submissions are perfect: What on earth is there to say? Much has been be said as to the skills of written and oral advocacy as separate concepts in modern litigation. But the relationship between the two: between written and oral submissions, between the written and the spoken word, is critical to any successful attempt at persuasion. It is a craft that all tax advocates should be seeking to develop. In discussing this “forgotten relationship”, I will also touch on some related issues as the development of a case theory in tax cases, witnesses and cross-examination, and some differences between trial and appellate advocacy.

Secondly, I wish to express some thoughts with respect to advocacy in the context of statutory interpretation of the federal taxation regime, including the Income Tax Assessment Act 1997 (Cth) (ITAA 1997). This section of this address will seek to emphasise (and clear up any misapprehension to the contrary) that the principles of statutory construction and interpretation, and approach to those principles, should not differ markedly in the context of tax cases. Statutory interpretation in this context is no more textual and no less contextual than any other context. While there are some peculiarities to the ascertainment of meaning which apply to tax cases, these do not stem from the difference in principle, but rather arise out of their application in taxation legislation.

Topic 1 - The forgotten relationship between written and oral advocacy 

Turning first to the fundamental, and as I have said, sometimes forgotten, relationship between written and oral advocacy in tax cases.

(a) Written submissions

The importance of written submissions in modern advocacy cannot be overstated.

Before developing that proposition, let us travel back in time and place to New York at the beginning of the 20th century: at the time Learned Hand was beginning to practice. Learned Hand, as you may know, was one of the greatest American Judges. He was not appointed to the Supreme Court. He should have been. The politics of that are discussed in Chapter 13 of Gerald Gunther’s magnificent biography of Hand. In the 1920s, 1930s and 1940s he commanded the 2nd Circuit Court of Appeals (the federal appeal court taking in New York State and surrounding areas). With his cousin Augustus Hand (Gus) and Dean Swann, who moved from Yale, the three of them were one of the best appellate courts ever in the English speaking world.

Just after Learned moved to practice in New York City in 1905, having earlier begun practice in the somewhat provincial capital of New York, Albany, he lamented his lack of a thriving appearance practice. All he was given was work for other law firms on a contract basis. That work was writing briefs (in effect written submissions) for appeals in the New York Court of Appeals and the 2nd Circuit Court of Appeals. Gus, his cousin, had a thriving appearance practice which Learned coveted.

Two things are revealed by this. First, the Americans have been using written submissions for much longer than English and Australian courts. (Can you imagine the startled look on the face of the Master of the Rolls or Chief Justice Griffith in 1905 if counsel had filed 20 pages of skeleton argument and, on rising to his feet, asked whether he would assume that the court had read them?)

Secondly, briefs or submissions were, in 1905, and are today, difficult to write. That is why those other lawyers were asking the brilliant Learned Hand to write them.

Speaking of my own experience on the Federal Court and NSW Court of Appeal, written submissions are often one of the first, and one of the last, documents to which a judge will turn in the process of understanding and deciding a case. This has been particularly so in the last two years during the COVID-19 pandemic, in which numerous shorter applications have been dealt with on the papers, and oral hearings truncated and conducted through video conferencing software. More than ever, written submissions provide an important portal into understanding a case which is otherwise obscured by prolix pleadings, numerous affidavits with annexures of considerable length, and complex legislation.

I would suggest to you that there are three functions of written submissions in the context of their relationship with oral submissions:

1) To provide an encapsulation of the essence or an overview of your argument.

2) To enable to the Court to follow and understand your oral submissions (I will speak more about that shortly). The structure and text should reflect how you intend to speak, at least broadly in the order to be delivered. Written submissions should not be seen as an independent exercise in advocacy devoid from relation to oral submissions.

3) To provide a document to be used after the hearing to write the judgment.

It is not easy to do all three:

1) Sunday on the porch: what is this about?

2) In Court: what to read while listening?

3) The weeks thereafter: what help are these?

When those three functions are understood and properly applied, written submissions should become the bench’s primary reference point. They should not merely be another reference document for the Court amongst a swathe of material in a Court Book or a judge’s working folder. Remember, the court has pleadings, notices of appeal and of contention, agreed facts, transcript, and other assorted pieces of paper. The written submissions (like the pleadings) are an opportunity to persuade and to help the Court. Who is reading the document? Busy intelligent people seeking to understand your case.

Having stressed the importance of written submission, may I then turn to some practical guidance, and in particular how to craft written submissions in such a way as to enable an effective and persuasive relationship with oral advocacy.

There is no magic formula. There is, however, one golden rule – dense, turgid, and structureless written submissions can turn sweet gentle and humane judges into bad-tempered and rude enemies.

As I have said, written submissions are often the first document a judge will use to read into a case, even before the judgment below sometimes. It will be read by the judge knowing nothing of the argument; by someone who may have other cases in the week. Try and remember how you came to understand the subject. That may well be the best route through the forest to provide an explanation to the court. Do not expect the judge or judges to have some magic wand which can organise and structure rambling and discursive discussions of legislation and case law. Don’t ask them to write their own structure: you have that opportunity: USE IT.

The written submissions of the respondent are not immune from this requirement, particularly in circumstances where the applicant or appellant has failed to create a clear structure through its submissions. Deftly written submissions in response can impose a structure on the applicant/appellant, and within that structure, defeat or severely limit the opponent’s case.

Given the complexity of statutes within which tax practitioners work, the written submissions become even more important in condensing the thicket of the tax statutes into a digestible and understandable format for a judge to begin to understand the case. Let me briefly touch on some important considerations.

First, always ensure you inform and remind the Court of the jurisdiction it is exercising (ie. an appeal pursuant to Part IVC of the Tax Administration Act 1953 (Cth); an appeal on question of law and taxation on appeal from the AAT; or an application for judicial review under s 39B of the Judiciary Act 1903 (Cth)), and in particular the limitations that jurisdiction places upon the Court in its standard of review or exercise of its function. This provides very important parameters for the dispute, and immediately helps situate the judge within the parties’ battleground where “war” (or perhaps diplomatic negotiations) has often been waging for some time.

Secondly, your submissions should provide a clear indication of the interaction between alternative arguments (if any), and the critical statutory criteria upon which they depend. Do not expect the Bench to understand for itself whether ground 3 is dependent on success for ground 1, or whether ground 4 is an alternative argument to ground 3 or merely further elaborates upon or particularises an aspect of ground 3.

Thirdly, the submissions should provide a clear indication of relevant point-in-time version of provisions under relevant statutes, which should be included in a list of authorities or otherwise provided to the Court.

Fourthly, written submissions should inform the Court of any relevant authorities which have considered the provision in question, or similar or analogous provisions in former point-in-time versions of the relevant Act. Of course, this necessarily requires the parties to be precise in what you say is the ratio decidendi of any previous case, and its status as precedent: is it binding upon the Court or merely persuasive? Have legislative amendments subsequently changed the provision, and were they referable to that previous decision? Is the case factually analogous?

All of these issues should be dealt with in written submissions. Otherwise, you can expect rather pointed questions to come from the Bench during the course of oral argument.

(b) Relationship between written and oral submissions

Having stressed the importance of written submissions and a few practical tips, let me expand on this critical (and often forgotten) relationship between written and oral advocacy that I have alluded to.

It is crucially important that there is a clear relationship between oral and written submissions. Inform the court as to how you propose to integrate the two. Written submissions should provide an effective and easy-to-use structure which the Bench can follow during your oral address. Departing from the structure or presentation of arguments in written submissions should be approached with some trepidation, or at least, with some care. If undertaken, clearly signpost that you are doing it. “Where are you in your written submissions, Ms X?” Can be a precursor to expressed irritation if what you are saying cannot be easily identified in badly organised writing; or, it can be the beginning of a helpful and intellectually engaging relationship if it can be seen that what is being said reflects a clear written position.

What do you say? The written submissions are perfect. But having read those perfect submissions once, the judge may be confused, or may not have the structure embedded, or may not have grasped your wisdom or the emphasis.

Written and oral submissions should have a symbiotic relationship. The oral submission is the opportunity to sytructure, illuminate, embed and fix what is in detail in writing. Effectively combined, oral submissions can be used to explain and persuade the Court of the correctness of the position advanced in writing. Think of it like this: Would you not want the judge before whom you are appearing to make a written note next to a section of your written submissions to the effect of “see transcript 3:30pm, well argued and persuasive”?

Decide what needs embedding, reinforcing, illustration or qualification. Again, think of how it was, through what path, you came to understand the problem. If the written submissions just lie in the file later to be compared with the transcript, you have lost an opportunity for integrated persuasion. The sight you should see when speaking is not just engaged faces, but also the tops of their heads as they annotate your submissions.

Without effectively creating a relationship between the written and oral submissions, the judge, poised to begin drafting the judgment, will be left to try and draw their own links between the transcript, written submissions and any notes they have made. Not only is this a time-consuming and somewhat frustrating task, but will inevitably diminish both the persuasiveness and the value of the favourable impressions made during oral argument. Such impressions can be evanescent and do not always (indeed rarely) leap out from the transcript. The gifts and skills of intonation and timing of the advocate often do not survive transcription.

It has become common practice (it remains bad practice) for written submissions to be written by junior counsel with little or no involvement from senior counsel until a very late stage of review in preparation for oral argument. Senior counsel will then dazzle and persuade orally, with another structure and with another emphasis. While this practice is or may be an understandable reality of practice at the Bar, it wastes, irreparably, an opportunity to persuade by integrated communication. May I urge upon senior counsel to be involved in written submissions as early as possible, particular as to their structure and the key points to be made: it is very difficult for written and oral submissions to have a close relationship where the advocate engaged in discourse with the Bench has less than intimate working knowledge of the structure and flow of argument in written submissions.

The written and spoken word engage different parts of the brain. Both play their part in understanding. Understanding can be extended or illuminated, by listening and by speaking.

Within this context of the relationship of written and oral submissions is the importance of a clear opening. Like any other case, the advocate should always provide the Court with a precise, yet succinct, summary of (1) what the case is about, (2) what they propose to prove or argue, and (3) how they propose to prove or argue it. Often the latter of those three steps can be forgotten. Ask yourself: what is it that the Court must grasp and, importantly, how should the Court go about that task? What constructional choice are you urging upon the Court? What factual propositions are essential to your case, and what material is critical to proving those factual propositions?

In my experience, the complexities of tax legislation appear to dissuade some advocates from the usual course of providing a short, succinct opening, and instead the court is hurriedly dragged into the thicket of the material factors or legislation without a clear idea of why or for what purpose. Before asking the Court to enter the weeds (so to speak), it is essential that the Court understands, or at the very least has a summary of, the findings or interpretations of the law for which you contend. It is important that the legal issues to be decided are succinctly framed within the factual context. It is not necessary to resolve the complexities of the legislation in the course of opening, but those complexities should be situated within the broader framework of the case for which the party contends.

Having set out the structure of your argument in a clear opening, it is incumbent on you to take the Court to the materials, both factual and legal, you wish them to understand.

Often (but certainly not always), tax cases will require an advocate to provide a methodical step-by-step work through of the relevant statutory provisions, and in particular the criterion upon which the case depends. This should usually occur early in the argument, for it is text over which the constructional choices will be debated and will ultimately control the outcome of the proceeding. Again, the relationship between written and oral submissions will be critical: your written submissions should provide an easy to use guide and reference point for the relevant provisions and the constructions for which you contend. I will have something more to say about the process of statutory interpretation shortly.

Finally, you cannot depend on the Court to explore every footnote in written submissions to evidentiary material to discover for itself what is the important material. You must either highlight the importance of that material in your written submissions, or take the Court to it in oral address with express reference to where the footnote reference is in the written submissions. This will enable your exposition of the evidentiary material in oral address to be connected to the written submissions, and also ensure the Judge returns to that material in writing the judgment.

(c) What are you trying to achieve?

On a broader level, in creating an effective relationship between written and oral submissions, it important to keep close attention to what it is you are ultimately seeking to achieve on behalf of your client, and the method through which you are trying to achieve it. It is worth contemplating two different ways of dealing with cases (tax and others alike).

The Melbourne and Sydney Bars sometimes could be seen to have opposing methods in seeking to achieve success for their client, what I will colloquially describe as the constructive and destructive methods

In Sydney, barristers often tend to employ the destructive method. The method of advocacy was to destroy all of your opponent’s propositions, therefore leading to the conclusion that what remains of yours must be right.

In Melbourne, barristers often instead employed a constructive method: the method of advocacy was to build a better and more persuasive case than your opponent.

This distinction (if it existed) appears to be diminishing, and advocacy becoming more aligned in both jurisdictions. I still believe that both the constructive and destructive methods can have value. But you must be clear on your methodology.

In this context, the framing of issues in written and oral submissions takes on importance. Written submissions which employ a more constructive method, particularly in the context of tax disputes, should not be followed by an oral address which focusses solely on destroying the opponent’s position. This is particularly so where the proper construction of defined criteria is at issue: destroying your opponent’s construction of defined criteria may lead only to partial success, if the Court is not otherwise persuaded of your preferred construction. 

Whatever approach or combination of approaches is adopted, advocates should avoid excessive volume of facts or law in the combined written and oral advocacy. The advocate must distil orally the facts and law into the essential propositions for which the party contends (the constructive method) or the fundamental problems with the propositions for which the opponent contends (the destructive method). An advocate should always be able to answer the question: what is the evidence/legislation relevant to? with an answer that it is necessary to establish or undermine a proposition of fact or law. As the Hon Tony Pagone has remarked, in a helpful chapter on advocacy in his book “Tax Disputes”, lengthy recitations of facts without reference to the task to be performed by the decision-maker can lead “judicial minds to wander”, and may lead to doubts or explorations that the advocate may not be able to predict or know .

That being said, Pagone does sympathise with practitioners that the length, cost and complexity of litigation, and tax litigation especially, is caused by “understandable caution” and the overcautious inclusion of material. Acting in the client’s best interests requires that no important details are missed or left out. My comments as to discernment in advocacy do not seek to dissuade practitioners from cautiousness, but rather excessive and unnecessary detail irrelevant to the facts in issue in the proceeding.

The written submissions enables comprehensive references to facts and law (the third purpose – judgment writing assistance). The oral address should emphasise those points that need discussion. “Do you need to go this now?”. “Just 3 examples your Honour – the balance are set out at …”.

(d) Witnesses

Advocates need to be clear about what each witness is being called to give information for. Often, witnesses will be required to explain the commercial setting and context of a particular transaction, business operation or cost or expenditure. Opposing advocates must not be afraid to cross-examine witnesses on these matters, which provide important factual setting to the construction of legislative provisions which must be understood in their commercial and fiscal context. Frank confrontation of what you are seeking to prove needs to be raised with witnesses.

(e) Differences between trial and appellate work

Before finishing on this topic, I will conclude with some remarks about the difference between trial and appellate advocacy in the context of the relationship between written and oral submissions. The difference between trial and appellate advocacy as the difference between dissecting a cadaver in a post-mortem (appellate), and creating a living creature at trial. Let me add some content to that statement.

The first point to note is that written submissions in appellate advocacy essentially draw the battle lines between the parties, while written submissions at trial (particularly opening submissions) set the stage of battle. Tax cases, even at first instance, often fall in the former category, being appeals from objection decisions by the Commissioner or from decisions of the AAT. Even judicial review applications (to an extent) more closely align with appellate advocacy than trial, where facts have already been found by a primary administrative decision-maker. That being said, written submissions in tax cases should almost always provide a full encapsulation of your argument and provide sufficient particularity to enable your opponent to understand your position. The Judge, and your opponent, need to know the instrument or instruments you wish to use to cut open the cadaver, and correspondingly in response, why that instrument or instruments are inappropriate. A Judge will not be too impressed by oral submissions which depart significantly from the thrust of submissions advanced in writing.

Secondly, may I emphasise that in appellate advocacy, counsel must be welcoming and engaging, not evasive, to questions from the Bench. While excessive questioning during first instance proceedings may be seen as unwarranted, dialogue between the Bench and counsel in appeals is the critical process through which issues are defined, clarified and ultimately resolved by the Court. Evasive answering of such questions or an unwillingness to concede points where warranted not only annoys the Bench, but will leave the Bench unclear as to the ultimate position and leave an unfavourable impression as to the persuasiveness of your argument.

Judges approach questioning differently. Some challenge and test by contradiction. Some seem agreeing, helpful and encouraging. This may be a process of blowing up your balloon to see when and why it bursts. Mostly judges are just seeking to understand.

Other reference materials

Bathurst, Bell and Justin Gleeson, “Written Advocacy” [2021] (Winter) Bar News 15

Topic 2 - Statutory interpretation

I will now turn to the second half of my title, “don’t play games”: particularly, don’t play games with text. It goes without saying that statutory interpretation is the bread and butter for advocates practising in the area of tax. The ITAA 1997 alone (including endnotes) is over 5,500 pages long. The principles of statutory interpretation have been well traversed in numerous and recent High Court authorities, a number of which have concerned tax legislation. It is not my intention to regurgitate a summary of those principles, which will or should be well known to you all.

Instead, may I seek to clear up a fundamental misapprehension that sometimes arises in the application of statutory interpretation principles to tax cases: the interpretation of the ITAA 1997 and other tax statutes does not require some greater degree of textualism. As I commenced this address, the approach to statutory construction is no more textual and no less contextual than any other statutory construction problem: see Alcan (NT) Alumina Pty Ltd v Territory Revenue (2009) 239 CLR 27 at [57].

It is true that applicability of the statutory provisions requires the identification of the taxing point and on whether defined criteria are satisfied. Understanding the text of defined criteria requires close attention and precision of analysis as to the whether at a particular point in time or conception criteria are satisfied by reference to the text used and the factual circumstances of the case. Nor do I seek to deny that the task of statutory construction begins and ends with the statute: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]. But I wish to push back against any suggestion that a different, more textual technique, is required to reach your answer in the context of tax cases.

It is no secret that tax legislation is often imbued with structural or linguistic ambiguity, where competing meanings of words are open on a purely textual analysis. That being the case, what meaning is to be ascribed or what interpretation to be adopted cannot be determined by reference to the text alone. Therefore, as I emphasised in Chevron Australia Holdings Pty Ltd v Commissioner of Taxation (2017) 251 FCR 40, reference to context and purpose of a statute is necessary in the search to find meaning of words (at [3]). Words alone cannot contain meaning shorn of context: CFMEU v Australian Building and Construction Commissioner (The Bay Street Appeal) (2020) 282 FCR 1 at [3]. It is paramount in the context of tax legislation to recognise “the fiscal and commercial context in which the provisions” are operating. Context provides, as I described in Chevron:

The place, the wholeness and the relational reality to words; it helps to prevent linear thinking and sometimes beguilingly simple and attractive logic with words driving meaning to unrealistic and impractical ends; and it helps ascribe meaning conformable with commonsense and convenient purpose gained from the relevant part of the statute as a whole … (Chevron at [3]).

It is, however, important that tax advocates adopt an appropriate frame of reference in using context and purpose for tax legislation. While statutory construction requires “reference to the language of the instrument viewed as a whole” (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320), often little, if any assistance, can be gained from reference to the broad social policies embedded in tax legislation, such as a statement that the object of the ITAA 1997 is to raise tax. While this is obvious, it does little to assist the task of statutory construction in an Act the size of the ITAA 1997 which applies to a myriad of different people, places and circumstances. The fact that the overarching purpose of the ITAA 1997 is to raise tax does not mean that beneficial constructions in favour of the Commissioner should be adopted or sought. As the Honourable Murray Gleeson AC has remarked, the income tax legislation raises revenue for government “not by all means possible but in accordance with a detailed and complex plan of fiscal policy”. Nor does the fact that the ITAA 1997 interferes with the rights to property of citizens require a narrow construction in favour of taxpayers. Chief Justice Barwick’s statement in Federal Commissioner of Taxation v Westraders Pty Ltd (1980) 144 CLR 55 at 59 that the Parliament must specify an obligation on the party of a citizen to pay tax with “unambiguous clarity” no longer holds the same force in modern jurisprudence.

A much more nuanced approach to purpose and context is required.

In highly taxonimised statutes which are closely structured and finely worded, the room for interpretation from broad expressions of purpose is narrow: Joffe v R (2012) 82 NSWLR 510 at 518 [36]. The text used becomes paramount. As Learned Hand J said in Helvering v Gregory 69 F2d 809 at 810 (2nd Cir 1934): “as the articulation of a statute increases, the room for interpretation must contract”. But that does not mean context and purpose becomes unimportant. Judge Hand continued in Helvering v Gregory: “The meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create”. See also Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13 at 30 [75] and Snedden v Minister for Justice (2014) 230 FCR 82 at 100 [99].

Instead, in legislation which may pursue competing and inconsistent purposes, the search for meaning will require closer attention to the particular purpose and policy of a section, division or part in which the words appear: see Channel Pastoral Holdings Pty Ltd v Commissioner of Taxation (2015) 232 FCR 162 at 165 [6]. This approach will more appropriately situate the text within the “fiscal and commercial context” or the “complex plan of fiscal policy” to which it seeks to address.

Statutory construction is not a textual game, to be played on a game board with moving pieces made of words. Logic and meaning are sometimes complementary, but logic does not drive meaning by moving individual words as building blocks.

Increasingly, Commonwealth drafters (including the drafters of the ITAA 1997) employ sections at the commencement of Parts, Divisions and Sub-Divisions which provide a “guide” to its intended operation. Often this “guide” will explain the purpose of and provide a summary of the provisions contained therein. As I explained in the Bay Street Appeal at [13], these guides “can be taken as express statutory aids to construction giving ‘practical content’ to words of generality or abstraction in the Part”, citing Russo v Aiello [2003] HCA 53; 215 CLR 643 at 645 [5] (Gleeson CJ). Their use in Commonwealth statutes more broadly should be encouraged. That is not to say that one should lose focus of the context and purpose of the Act as a whole. Rather, such guides form an integral part of seeking to ascribe meaning to words, and therefore provisions, within the statute that reflect the purpose for which they were enacted.

That is not to say that broader context is irrelevant. This is exemplified by Commissioner of Taxation v Shell Energy Holdings Australia Limited [2022] FCAFC 2. In that case, the Full Court considered the proper construction of s 40-80(1) of the ITAA 1997, which provided that the decline in value of a depreciating asset that a taxpayer holds is the asset’s cost, if the taxpayer “first uses” the asset “for exploration”. In construing “for exploration”, emphasis was given to the important commercial and sovereign context concerning the exploration for and exploitation of natural resources, namely oil, that militated against any narrow construction of the words “explore” and “exploit” (at [3]). Justice Davies conducted a detailed review of the statutory history, including its international law context and its part amongst a cohesive natural regulatory scheme governing offshore activities, to find that there was nothing to suggest that Parliament intended that “exploration for petroleum” should be limited to discovery of petroleum and not include activities directed to investigating the commercial recoverability of petroleum. Without reference to this context and purpose, a purely textual analysis involved a fraught choice between competing dictionary definitions of words.

Resort to dictionary definitions of words can be problematic when devoid of context. Despite common perception, dictionaries do not provide authoritative definitions of words, they merely provide approximate meaning of words or a range of possible meanings. As Spigelman CJ has remarked, “[j]udges no longer approach a statute with scissors in one hand and a dictionary in the other” (Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales (2009) 78 NSWLR 43 at [88]). The High Court in Thiess v Collector of Customs (2014) 250 CLR 664 at [23] has affirmed Learned Hand J statements in Cabell v Markham (1945) 148 F 2d 737 at 739 “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning”. Therefore, while dictionary definitions may be of assistance, often they provide little more than confirmation that the constructions contended by either party fall within the range of acceptable meanings. As noted above, this was the case in Shell – see [30]-[31].

With this misapprehension as to textualism in mind, I dissuade you from seeking to play word games with text. Any interpretation of the text of the tax legislation needs to be run by the fire of practicality, common sense and evident purpose. Any problem of statutory construction needs to be looked at from the perspective of: Well, really? Did I just turn water into wine? If it appears so, there may be something amiss.

Reference materials

G T Pagone, Tax Disputes (The Federation Press, 2018), Ch 9

AM Gleeson, Statutory Interpretation (Justice Hill Memorial Lecture, 24th National Convention, Taxation Institute of Australia, 2009)

Mark Burton, ‘The Rhetoric of Tax Interpretation – Where Talking the Talk is not Walking the Walk’ (2005) 1(3) Journal of the Australasian Tax Teachers Association 1