(a) whether the applicant had assessable amounts in respect of the Cleary Hoare Practice Trust taxable income for the 1997 to 2002 tax years pursuant to Part IVA of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936); and > > (b) whether the applicant had assessable amounts in respect of the Income Earning Trusts taxable income for the 1997 to 2000 tax years pursuant to Part IVA of ITAA 1936.[1]

6. Mr Grant did not dispute that there were schemes, as defined in Part IVA, and advanced no submissions on the question of the dominant purpose of the schemes. His contention is that he did not obtain a tax benefit or alternatively any such benefit was less than the assessed amounts.
7. Section 177C(1)(a) in Part IVA provides that for a tax benefit to be obtained by a taxpayer in connection with a scheme there must be:

... an amount not being included in the assessable income of the taxpayer of a year of income where that amount would have been included, or might reasonably be expected to have been included, in the assessable income of the taxpayer of that year of income if the scheme had not been entered into or carried out.

8. It is common ground that consideration of this provision requires a reliable prediction of events that would or might reasonably be expected to have taken place if the schemes had not been entered into.
9. Mr Grant contends that, if the schemes had not existed, he would have:

(a) utilised accrued personal losses that he had available in 1997 as an offset against income that would have been distributed to him by his associated trusts; and > > (b) otherwise caused trust income to be distributed to himself, his de facto partner at the time and then otherwise to a corporate beneficiary, such that the applicable tax rate "across the board" did not exceed the then prevailing rate of income tax applicable to companies.

1. Mr Grant bears the burden of proving the relevant assessments are excessive.[2] He seeks to do so by supporting his Postulate with evidence of two experts, as summarised below. The Commissioner says Mr Grant should be permitted to rely on one or other of the expert reports but not both.

1. The experts are Mr Chris Newman and Mr Paul Laxon.
2. They hold similar professional qualifications. Mr Newman holds a Bachelor of Commerce and has been a Certified Practising Accountant and tax agent. Mr Laxon holds a Bachelor of Commerce and was formerly a Fellow of the Tax Institute and an Associate of the Institute of Chartered Accountants.
3. Mr Newman and Mr Laxon are both experienced tax professionals. In his long career, Mr Newman focussed mainly on small to medium sized businesses. Mr Laxon's work, as a former partner and taxation practice leader in a Big Four accounting firm, included significant work involving large corporate entities. Although the nature of their experience within the taxation field is somewhat different, I do not regard that as significant for current purposes.
4. It is common ground that the two experts were asked to address essentially the same questions. In broad terms, they were asked, having regard to his financial and vocational circumstances as set out in their instructions, what advice they would have given Mr Grant in the relevant years if the schemes had not existed; why they would have given that advice; and whether they had given similar advice to other persons engaged in legal or other professional practices. They were asked to address four sets of figures referred to in the parties' Statements of Facts, Issues and Contentions filed in the proceedings.
5. Although the broad thrust of the reports is similar in each case, there are differences in the detail of the advice that each expert says he would have given. Those differences result in different opinions regarding the extent of any distributions that Mr Grant would have received if the schemes were not entered into and the advice had been followed.
6. Mr Newman was Mr Grant's taxation adviser in 1999 and 2000. However, he does not recall or have any record of what advice, if any, he gave Mr Grant. Mr Laxon was not Mr Grant's adviser in any relevant year. Mr Laxon gave evidence before the AAT; his expert report is described in Mr Grant's submissions as an updated and consolidated report. Mr Newman did not give evidence before the AAT.
7. Mr Grant's case is that in the two years in which he was advised by Mr Newman he is likely to have followed Mr Newman's advice and Mr Newman's report is relevant to what that advice is likely to have been. In the other years, in which Mr Grant was not advised by Mr Newman, Mr Grant's case is that he is likely to have received and followed advice of the kind given by Mr Laxon, given that in later years he says he in fact received advice of that kind and followed it.

1. The Tribunal has the power to grant the relief sought by the Commissioner: Administrative Review Tribunal Act 2024 (Cth), s 79. The question for determination is whether as a matter of discretion that relief should be granted.
2. In considering that question, an overarching consideration is the statutory objective of the Tribunal set out in s 9 of the Act. That objective relevantly includes providing a mechanism of review that is fair and just and ensures applications to the Tribunal are resolved as quickly and with as little expense as a proper consideration of the matter permits. In accordance with s 55 of the Act, the Tribunal also has an express obligation to ensure each party to a proceeding is given a reasonable opportunity to present their case and adduce evidence.
3. In summary, the Commissioner submits that relief should be granted because:

(a) The reports are duplicative because the experts have similar qualifications and were asked essentially the same questions. > > (b) Contrary to the applicant's submissions, the reports do not serve dual purposes. > > (c) The duplicative nature of the reports is not cured by Mr Grant's proposal to rely on Mr Newman's report for the 1999 and 2000 income years and Mr Laxon's report for the other years in dispute. > > (d) The relief sought is consistent with recent authority on modern approaches to case management. > > (e) The cases on which the applicant relies do not support refusal of the relief sought by the Commissioner.

4. In relation to (a), I accept that the reports are duplicative in the sense that they address essentially the same questions and the authors' qualifications and experience are from the same field of expertise.
5. In relation to (b), the applicant submitted that Mr Newman, in addition to providing his opinion regarding the advice that he would have given, is also a witness of fact. That is said to be because he was Mr Grant's adviser in 1999 and 2000 and it may more readily be inferred that Mr Newman would have given, and Mr Grant would have acted upon, advice consistent with Mr Newman's opinion as to the advice he would have given.
6. Ms Pierce, who appeared with Mr McEniery for the Commissioner, argued that Mr Newman's evidence would not be evidence of a fact and referred me to authorities concerning the distinction between evidence of fact and evidence of opinion. I do not find it necessary to descend into such distinctions. I accept that, as Ms Pierce pointed out, it is not Mr Newman's evidence that he in fact gave such advice. But I also accept that the Tribunal might - it is a matter for submissions at the substantive hearing - more readily reach a conclusion regarding the reliability or otherwise of the Postulate in the 1999 and 2000 income years when the opinion evidence is provided by the very same person who was Mr Grant's adviser in those years.
7. In relation to (c), Ms Pierce pointed out that both experts provide evidence in respect of all of the years in contention and, because their opinions differ, the Tribunal will be confronted with inconsistent evidence. I accept that is so. However, Mr Grant bears the burden of proof in the application for review. If he chooses to put on inconsistent evidence, that is a matter counsel may make submissions about in the substantive hearing. The impact of the difference in the approaches of the experts on the weight to be given to the reports relied upon in the respective years is a matter for the substantive hearing. It may even be problematic for Mr Grant's case. It is not, in my view, a compelling reason for locking Mr Grant out from relying on the evidence he seeks to adduce.
8. In relation to (d) and (e), Ms Pierce drew attention to authorities indicating that the default position in courts is that multiple reports from similarly qualified experts opining on the same questions should not be permitted without justification.[3] I accept that approach is also appropriate in the Tribunal. Its rationale is obvious. But consideration of the appropriate course in a particular case must be consistent with a proper balancing of the Tribunal's objectives as set out earlier and the express obligation to ensure each party to a proceeding is given a reasonable opportunity to present their case and adduce evidence. Even in the courts, the authorities admit of exceptions to the default position.[4] What constitutes a reasonable opportunity for a party to put their case and adduce evidence is highly dependent on the context.
9. The context in this case includes, in my view, a number of features that weigh against confining Mr Grant to one of the two expert reports.
10. As already noted, Mr Grant is facing what is on any view a very substantial liability for tax and interest, over $20M. Additionally, to discharge the statutory burden of proof, he must prove what, as a hypothetical matter, would have or is reasonably likely to have occurred if events that actually took place had not occurred. That is a heavy burden to discharge. Against that context, the Tribunal should not rush to prevent Mr Grant from adducing evidence that he or his advisers consider prudent to adduce in an endeavour to discharge the burden that falls upon him.
11. I acknowledge there will be some not insignificant additional burden on the Commissioner from allowing both reports into evidence. However, the reports are not lengthy. Putting aside statements of their qualifications and instructions, the substantive parts of the reports in each case are less than 10 pages. It is not a case where lengthy duplicative reports with complex scientific or other material are sought to be presented. The subject matter should be familiar to and readily understood by the Commissioner's representatives. Having regard to the matters mentioned earlier, I do not consider the additional burden is disproportionate or unreasonable in the context of this review.
12. Additionally, as already noted, the reports are relied upon for different purposes, Mr Newman's report for the 1999 and 2000 years and Mr Laxon's for the other years. Although the weight to be given to each report in relation to the respective periods is a matter for the substantive hearing, the reasons for Mr Grant seeking to rely upon the respective reports are not capricious or improper. In the context in which the question arises, he should not be prevented from doing so.
13. In summary, balancing considerations of fairness, and an opportunity that is reasonable in the circumstances to adduce evidence, against efficiency and cost considerations, I am of the view that Mr Grant has made out the case for allowing both reports into evidence.

[1] Grant v Commissioner of Taxation [2024] FCAFC 173.

[2] Taxation Administration Act 1953 (Cth), s 14ZZK.

[3] Novartis Ag v Pharmacor Pty Limited [2022] FCAFC 58.

[4] Davis v Comensoli [2024] VSC 668, [44].