Damien Bourke

AREAS OF EXPERTISE

Tax; Tax litigation; Tax Controversy (including ATO Reviews/audits); Mediation; Dispute Settlements; Alternative Dispute Resolution; Disputes; Trust law.

AWARDS

• Best Lawyers (Australia), Tax Law, 2020-2024
• Doyles Guide (Queensland), Leading Tax Lawyers, 2017 – 2018, 2021-2023

QUALIFICATIONS

• Bachelor of Laws – Queensland University of Technology
• Admitted to practice in Queensland
• Qualified mediator – LEADR

SELECTED REPRESENTATIONS

• Guardian AIT Pty Ltd v Commissioner of Taxation [2023] FCAFC 3. The matter was widely publicised and concerned the application of section 100A and Part IVA of the Income Tax Assessment Act 1936. The taxpayer was largely successful in the litigation – ultimately being awarded indemnity costs.
• JCM Pty Ltd v Commissioner of Taxation of Taxation [2023] FCAFC 76. The dispute with the Commissioner centred around the definitions of ‘contractor’ and ‘employee’ both at common law and the extended definition under the SGAA. The Taxpayer, whilst unsuccessful in the Federal court, successfully appealed and was also awarded indemnity costs. The Commissioner’s application for leave to appeal the decision to the High Court was dismissed in October 2023.
• Fewstone Pty Ltd v Commissioner of Taxation – Federal court QUD 243/2022 and 247-250/2022. Appeals heard over May -June 2023 where the ATO had applied Division 7A in conjunction with section 45B in seeking to bring to tax a pre-CGT asset. Immediately prior to the commencement of the hearing the ATO abandoned the amended assessments in so far as Division 7A applied. The ATO also raised alternative assessments under Part IVA on the basis that the transactions (commencing with a ‘rollover’ of trust interests to a company were a ‘tax avoidance scheme’. This will be the very first judicial consideration of s45B.
• Coal of Queensland Pty Ltd v Innovation Science and Australia (2021) HCASL 163. This matter concerned the eligibility to accessing the Research and Development tax concession for a mining company that was able to economically extract quality coking coal from coal seams previously thought unproductive.
• Apted v Commissioner of Taxation (2021) FCAFC 45. This decision was the first to successfully review the Commissioners decision to deny jobseeker payments to a business that didn’t have an ABN on the required date.
• Cheryl King v Commissioner of Taxation QUD 717-721 of 2018. The dispute with the Commissioner arose from default assessments issued over a number of years – all using the asset betterment method. The dispute was resolved with the Commissioner, allowing all of the taxpayers appeals and agreeing to pay their legal costs.
• Can Barz v Commissioner of State Revenue (2016) QSC 059. A successful Application to set aside an attempt made by the Commissioner to intercept funds on the sale of an asset by a SMSF. Currently the subject of an Appeal by the Commissioner of State Revenue.
• Commissioner of Taxation v Donoghue (2015) 237 FCR 316. An appeal by the Commissioner to the Full Federal Court against the decision of Logan J., striking down assessments issued on the basis of tainted documents which were obtained by the ATO from a former disgruntled solicitor. In 2011, privileged documents were provided to the Commissioner by this former solicitor who had acted for the taxpayer in other proceedings. Orders were sought that the assessments be set aside on the basis of conscious maladministration – i.e. the documents were knowingly used by the Commissioner despite the possibility of attracting legal professional privilege. The decision of the primary judge was reversed on appeal and an application for Special Leave to the High Court was unsuccessful (2016 HCASL 131).
• Federal Commissioner of Taxation v Clark [2011] FCAFC 5. The decision in this litigation has been integral to taxation advisors on the continuity of trusts. The taxpayer was ultimately successful in the High Court – having previously overturned the ATO objection decision at first instance and in the Full Federal court. The importance of the case was underlined when the Commissioner withdrew his (so-called) ‘Statement of Principles’ – on the continuity of trusts following trust deed amendments. The taxpayer was ultimately awarded indemnity costs.