The use of extrinsic materials by the Courts in the interpretation of taxation legislation

Abstract

While the law relating to the use of extrinsic materials, such as second reading speeches and explanatory memoranda, in statutory interpretation appears to be reasonably settled, nonetheless, both the taxpayer and the Commissioner of Taxation have sought to rely on extrinsic material to support a particular interpretation of legislation. The ability to use extrinsic material an have significant implications for the taxpayer or the Commissioner. It is therefore important to understand when it is appropriate to use this material. Significant costs can be incurred by a taxpayer in basing an argument on extrinsic material, only to discover that the courts will not consider such material. This article reviews recent cases to determine to what extent these rules continue to apply and how and when tax practitioners can rely on extrinsic material to support a stance taken against the Commissioner or allow a practitioner to dispute the Commissioner’s use of such material.