Hart – Federal Court of Australia finds that summarizing legal tax advice received in a submission to the tax authority resulted in loss of privilege over the opinion letter

The taxpayer argued that he was not subject to the application of the Australian general anti-avoidance rule given that he had relied on two legal opinions. The taxpayer’s counsel had voluntarily provided a précis to the Commissioner of one of two legal opinions in some considerable detail.

Bromwich J found that this amounted to waiver of legal professional privilege over the letters.

A similar dilemma was avoided in Inwest, where it was sufficient, in helping to establish that the taxpayer’s filing position did not reflect carelessness, to indicate that it had consulted with counsel, without the specific advice received being put in evidence – so that there was no waiver of solicitor-client privilege.

Neal Armstrong. Summary of Hart v Commissioner of Taxation (No 3) [2017] FCA 571 under s. 232(1) – solicitor-client privilege.