Federal Lawyer

Archive for April, 2010

Appeals to the Federal Court require a written application which sets out brief details of the objection decision and must be filed with the relevant Federal Court Registry.

The application must also be accompanied by the prescribed fee applicable to all applications to the Federal Court. This is currently $606.00 for individuals and $1,453.00 for corporations for each objection decision.

The taxpayer must also serve a sealed copy of the application on the Commissioner, as Respondent, at the Office of the Australian Government Solicitor in the state or territory in which the application was filed.

Within 28 days of serving a sealed copy of the application on the Commissioner, the Australian Taxation Office will provide the taxpayer with a Notice of Appearance, a copy of the documents filed with the Federal Court, and a statement of the facts, issues and contentions regarded by the Commissioner as relevant to the appeal.

The Federal Court will then call a Directions Hearing which must be called at least five weeks after the taxpayer’s application was filed.

Once the Federal Court is satisfied that the Commissioner has provided all relevant documents, appeals are then set down for hearing. The taxpayer must pay a setting down fee of $1,211.00 for individuals and $2,422.00 for corporations when a date is fixed for the hearing of the appeal. There is also a daily hearing fee of $483.00 for individuals and $969.00 for corporations.

The Federal Court is able to overturn a decision of the Commissioner of Taxation. However, the Federal Court cannot interfere with any discretion exercised by the Commissioner. It can only refer the matter back to the Commissioner for further assessment.

The Federal Court is able to award costs either against the Commissioner of Taxation if the taxpayer is successful, or against the taxpayer if the Commissioner is successful. In either case, the proportion of costs awarded will generally be between 50% and 60% of the actual costs incurred by the successful party. However, if the Federal Court were to conclude that the behaviour of either the taxpayer or the Commissioner warranted sanction because of the way in which the case had been brought or conducted, a higher proportion of costs (known as solicitor/client costs) may be awarded.

A taxpayer should seek legal advice as to the choice of whether to seek review in the AAT or appeal in the Federal Court may involve taxpayers seeking legal advice. Whilst the Federal Court is the more appropriate forum for objections which are highly technical or which involve complex propositions of taxation law, the court costs are high. Taxpayers generally retain barristers and solicitors to conduct their appeals. The AAT, on the other hand, is cheaper to commence and pursue reviews and places an emphasis upon consensual resolution of disputes. However, AAT members may be less experienced than Federal Court judges in hearing highly complex disputes which involve difficult propositions of taxation law or in managing pre-trial processes to ensure a speedy hearing.

Taxpayers do have further appeals both from the AAT or from the Federal Court.

Whether disputing Private Rulings or taxation assessments, taxpayers maximise their chance of success by utilizing the services of lawyers who are familiar with taxation law and the arguing of objections.

Finally, taxpayers should remember that the Australian Taxation Office will impose a General Interest Charge (GIC) which is currently 13.19% on all outstanding taxation assessments from the date that the assessment was made. The lodging of a review at the AAT or appeal to the Federal Court does not stop this GIC from accumulating. Taxpayers should seek legal advice as to whether to pay either the whole or a part of the disputed taxation notwithstanding commencing the review or appeal. While this will have financial consequences on the taxpayer, the payment will prevent further GIC from accruing. The cost of funding the payment will be less than the GIC. If the taxpayer is successful in the review or appeal, and the amount of the assessment has already been paid, the Commissioner of Taxation is not obliged to refund interest on the refunded taxation payments.

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1. What is the difference between a federal and state crime?

A federal crime is a violation of a statute passed by the United States Congress. A state crime is a violation of a statute or ordinance passed by the state legislature or a local authority. Usually the federal crime addresses criminal activity or a more national concern. Although, in recent decades the federal government has become increasingly involved in prosecuting drug and violent crimes, areas once left almost exclusively to the states. Many crimes are prosecutable in both state and federal courts.

2. Who investigates and Prosecutes federal crimes?

For the most part, federal criminal offenses are investigated by agents of federal agencies such as the FBI, DEA, ATF, Secret Service and others. Occasionally, state law enforcement officers work in conjunction with federal agencies. Federal crimes are usually prosecuted by the United States Attorney’s Office for the area where the crime occurred. Sometimes a prosecutor for the United States Department of Justice, or from an agency such at the Environmental Protection Agency will participate in a federal prosecution.

3. If I am charged with or under investigation for a federal offense do I need a “federal” criminal defense lawyer?

In order for a lawyer to represent you in a federal criminal matter he or she must be licensed to practice in the federal court where the case is pending or must receive permission of the court to practice there on a one time basis. Additionally, the federal criminal justice system is drastically different than the state system. It is important that your lawyer have experience in federal court so that he or she can effectively represent you.

4. What are the federal Sentencing Guidelines?

From 1987 until recently in federal court, if a defendant was found guilty or pleaded guilty, the judge assessed punishment in accordance with the Sentencing Guidelines. The United States Sentencing Guidelines manual contains the rules for determining the range within which a judge’s sentence was required fall. Factors that went into the determination included, the offense for which the defendant was convicted; certain factors about the offense such as how much money was involved in a financial crime, the role of the defendant in the overall scheme and other factors concerning the defendant’s conduct; and the defendant’s criminal record. The court was required sentence within the applicable guideline range (expressed in a range of months) unless the case was extremely unusual or qualified for one of the few exceptions allowing the judge to depart from the guidelines. Guideline sentencing was a complicated aspect of federal criminal cases. However, the United States Supreme Court, in January 2005 declared the mandatory nature of the guidelines unconstitutional. At this time the guidelines are to be used by the judges as advisory tools to help them exercise their sentencing discretion. Congress will probably act in the near future to again change the sentencing scheme.

5. If I am under investigation for a federal offense but have not been charged should I contact an attorney?

You should contact an attorney immediately. You have important rights during the investigation that should be protected. How you proceed at this state may drastically affect the ultimate outcome of your case.

The information you obtain from this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.