Ermelinda Kovacs and Alexander Schatz, instructed by Brown Wright Stein, successfully appeared for the taxpayer in Australia Investment Holding Group Pty Ltd v Commissioner of Taxation [2025] ARTA 1185.

This is an interlocutory decision of the Administrative Review Tribunal in connection with the Commissioner’s objection, on the basis of legal professional privilege, to the taxpayer being granted access to 119 documents produced in response to summonses issued at the taxpayer’s request.

The privilege claim arises in the context of the taxpayer’s application to review the Commissioner’s decision disallowing an objection against income tax assessments issued to the taxpayer.

The Commissioner had engaged an expert to provide an opinion regarding the extent to which the taxpayer had substantiated its claims that certain entries in its bank accounts related to loans and therefore did not represent assessable income. In his first report, the expert considered 38 entries with a total value of $41.4 million and concluded that 28 of the transactions, amounting to approximately $31 million in value, were substantiated as not representing assessable income.

After being directed by the Tribunal at the taxpayer’s request to make concessions in his Statement of Facts, Issues and Contentions consistently with his expert evidence, the Commissioner served another report of the same expert in which only 18 of the 38 transactions, amounting to approximately $20 million in value, were considered to be substantiated as not being assessable income.

Senior Member Olding concluded that 91 documents were not subject to legal professional privilege and granted access to those documents to the taxpayer.

A copy of the decision may be found here.