Paul Hogan’s lawyer has slammed the Australian Taxation Office (ATO) and the Australian Crime Commission (ACC) for omitting from its evidence vital information of how his tax haven structures were greenlighted by one of the best tax barristers in Australia who was a friend of the Commissioner of Taxation Michael D’Ascenzo.
The Australian newspaper last Saturday told the story of how a former financial advisor to Hogan named John Gibb gave a statement to the tax office in July 2009 that he had researched the proposed offshore structure and advised Hogan against using it. But Mr Gibb also indicated during the three-hour meeting that Hogan chose instead to rely on advice by senior tax lawyers, who said the offshore arrangements were legitimate.
Apparently Mr Gibb made a further statement to the authorities in December 2009 reiterating he had researched the proposed offshore structure and advised Hogan against using it. However, in legal documents filed in the Federal Court by the ACC there is no mention of the other advice provided by leading tax lawyers saying the structure was legitimate.
One of those lawyers was Graham Hill QC who went on to become a judge of the Federal Court. Hill (who is now deceased) was once described by former High Court Justice Michael McHugh as “probably the leading lawyer in Australia on taxation matters”.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
Hogan’s lawyer Andrew Robinson refused to confirm to Crikey whether it was Hill who provided advice to his client. However ATO sources have told Crikey it was indeed Hill.
As The Australian newspaper points out, D’Ascenzo and Hill were friends for twenty years before Hill’s death in 2005. Hill was held in such high esteem in the tax industry that the Graham Hill Award is made annually to a person who has made a significant contribution to improvements to revenue law in Australia. D’Ascenzo is on the Graham Hill Award Advisory Panel that makes recommendations of the annual recipient of the award.
In 2005 D’Ascenzo and a member of the Law Council said this in a valedictory published in a Law Council publication about Hogan’s tax haven advisor:
He was a leader of the Federal Court on taxation matters and made a profound contribution to the Australian taxation system. He was notable in seeking to balance the inevitable tensions that arise between tax administrators and taxpayers.
Justice Hill’s judgments have provided clarity on a range of tax issues and left the community and tax administrators better equipped to deal with the interpretation of the tax law.
Robinson told Crikey:
John Gibb gave a statement to the Commonwealth in July last year confirming what Paul Hogan said all along and that is for all these structures and effectively everything that Paul has ever done in a significant way he got a sign off from a very significant advisor in the relevant jurisdictions and apparently the Commonwealth took another statement from that witness six months later and all of that was omitted and yet for some reason the Commonwealth are relying on the second statement and not talking about the first.
Said Robinson, “I think when you are exercising really draconian powers like Departure Prohibition Orders I think Australians are entitled to have the authorities be a little bit more transparent than they are being at the moment.”