Avoiding unfairness : a case for estopping the Commissioner of Taxation

This article is a companion piece to my previous article published in 2016 in the University of New South Wales Law Journal foreshadowing the need for another remedy to overcome the ineffectiveness of conventional discretionary and statutory remedies in upholding the concern of the law to avoid practical injustice in the context of private tax rulings. It argues that by drawing analogies with the essential elements for an estoppel in equity, the well-recognised but largely unused "administrative" or "public law" estoppel may be raised to avoid detriment befalling the taxpayer from the unfair exercise of power to make a revised private tax ruling under s 359-55 of the Taxation Administration Act 1953 (Cth). The article further argues for adoption of the "obligation of consultation" expounded in the seminal UK Court of Appeal decision in R v North and East Devon Health Authority; Ex parte Coughlan as a proxy for the "minimum equity" necessary to avoid detriment notwithstanding the inapplicability in Australia of the notion of "abuse of power" applied in R v North and East Devon Health Authority; Ex parte Coughlan.