Which professional or lawyer would I be best enquire with if I wish to discuss Land tax issues

hi there,

The title says it all,

Is there a specific type of professional I should look to speak to if I wish to discuss a matter regarding land tax charges and calculations etc etc

 

Is it for a land tax bill you're trying to dispute or just trying to set yourself properly up beforehand ?

 

State legislation so you will need a lawyer if you want advice.

 

Just wanting myself up properly

 

So is that any lawyer terry, or a land lawyer....

 

Any lawyer that advises on land tax. Most probably wouldn't.

 

Tax or property lawyer

 

More likely a tax lawyer but some property lawyers may also cover land tax.

 

A tax or lagal adviser who know land tax and property is who is legally qualified would be the right adviser.L Some lawyers are not all tax qualified AND insured as a consequence.

Its not correctt to suggest that registered tax advisers are unqualified to advise on state taxes such as land tax, duties, payroll and workers comp. Our . Our PI cover specificially says that. My qualifications as an example included basic qualifiactions in several aspects of law for that purpose....Company, tax and basic law. BUT I am NOTpermitted as practice in the field of general law ...only tax law for which I have experience and qualifications.

So the answer depends on your questions. And if you need assistance in some elements of tax law a legal adviser cant assist as it not a tax service. Eg completing a tax form.

 

Non lawyers can't advise on land tax because it is state legislation. As such they won't be covered by insurance as this is legal advice.

Tax agents can give legal advice in relation to legislation administered by the commissioner of taxation which is basically just income tax.

 

Our PI policy says otherwise provided we hold a degree and a qualification in tax and / Corporation law and maintain qualiifactions. This is additional to general and client specific tax law. The permitted advice includes state revenue tax law and general (not specific) superannuation law. Specific client and product advice may only be given under AFSL. There are some aspects of state revenue law which pose a risk such a duties but provided the advice is limited and addresses that limit. ie calculation of a liability, regsiration etc. Its also reason why tax advisers acan be nominated as a contract point for those taxes. For example I can provide explanation of the tax and its imposotion and calculate a liability. I can advise liability and avoidance but strcturing changes may be questionable where they relate to legal choices and decsions.

I can provide limited advice relating to Corporations Law as an example. Usually general fact based advice. eg s127 means....I can advise a client what insolvent trading may mean but in general terms. I cannot advise them on a legal defence for such a issue. But I would normally limit this as limited advice and direct a client to seek legal advice when strategic choices, advice or avoidance or a issue specific to a law is sought.

Our PI cover also addresses financial qualifications. A further area where a law degree may qualify an opinion to be given but ASIC laws and PI do not grant any rights unless a license is held. Just as lawyers cant give advice under AFSL without a license they arent insured either. WE are licensed...provided we follow process....

The key issue is seeking someone qualified AND insured for the matter. I dont provide unqualified advice. I tell people. Thats also what lawyers do too. Knowing insured limits is what all professionals do.

Its not different to lawyers who may be inexperienced in some areas of law. I asssisted a client seek damages from a lawyer who did not possess tax and trust law experience who gave poor advice which affceted tax outcomes. The Law Society imposed sanctions.

 

I know no legal basis for tax agents to give advice on state tax legislation. DBA lawyers also recently expressed the same view.

Certainly many do.

 

PI cover says I can (only) provide tax advice and factual based advice (general factual advice) on state tax, financial and corporations law. Not legal advice. Its quite clear. Its like some lawyers cannot provide tax agent services without a tax agent registration. Obviously their area for advice is broader but lacks tax agent services or AFSL etc. When they hold a AFSL etc their advice is also not legal advice but given under tax services or AFSL etc. THeir advice sometimes isnt legal advice but tax advice, AFSL advice etc. DBAis a geat example where their super advice crossed lagl and also AFSL advice when given to a client. Likley two diferrent but related PI covers also.

This is a good thing that ensures quaifications experience and insurances. eg a lawyer or accountant who does not have current PI cover for tax advice cant give tax advice under the Tax Agent Services Act laws. Ditto uninsured lawyers cant act either under Law Soc rules.

Its wrong to say "accountants cannot"..More complex than that. Its like arguing Woolworth cant sell sausages as only butchers can sell meat. Woolworths employ butchers. Not all people in meat dept are butchers however

 

What is the legal basis for a tax agent to provide factual advice on state tax law. Could a hairdresser also provide this advice

 

Yes. Uninsured of course and lacking in experience. But not prohibited by law. Many lawyers may lack experience in some or all aspects of land tax too.

Qualifications, experience and insurance are the trifecta required for all professional services. Ethical pronouncement generally guide and limit what may be insured. eg A member must not provide financial advice unless they hold a AFSL etc.... Being a solicitor for example doesnt mean a solicitor can give advice on land tax. They need a practicing certificate and PI etc. For example I know many accountants who are also lawyers. Some with and some without a pract certificate. Some with a pract cert who probably would be first to admit land tax isnt their game.

I can tell them what land tax is, how it is imposed and how to determine liability and would be expected to provide such answers as part of a diligent preparation of the clients tax affairs. ISilence on such issues would be obstructive to advising a client. Potentially negligent too. eg I dont need to give legal advice to read and understand a contract for completing CGT/GST matters relating to a settlement of property. If I note a margin scheme concern I refer the client back to their lawyer.

Knowing when to stop and who to refer to is part of the toolkit for all professionals.

 

It's fair to say that traditional boundaries for all knowledge workers are becoming redundant. I have personally seen great tax advice generated by some financial planners. And having sat on a board of a Cancer charity I have seen nutritionist's give great advice regarding the medical treatment of cancer.

What is relevant now is the strength of the argument a person has; not what that person studied at university when they were 18.

 

I am not sure where the line in the sand is (and don't have to worry as I am a lawyer with a practicing certificate) but I would be concerned about a tax agent or any non-lawyer advising about land tax. Factual information can be given by anyone. But when advising you would need to interpret legislation.

Example if a cient asks do trusts get a land tax threshold in NSW you could say discretionary trusts don't. This is a fact.

If a client asks do unit trusts get a land tax threshold then you can say it depends on the structure of the trust. If it is a fixed trust meeting the definition of s 3A then... and here you are the interpreting the law and giving legal opinion.

I agree with Ross inn that it doesnt matter what you have studied at uni. I don't have any qualifications in tax law, but my practice in mostly tax advice. I never studies land tax or bankruptcy law at uni but I advise in these areas. However i did study family law, yet don't advise in this area.

 

To explore the land tax issue further, it it legal advice, tax advice or within the realms of property management to advise a client (lessee) of their liability for land tax under a gross lease where the owner of the property is the crown/local government?

 

So by your definition, PMs can't advise on tenancy issues as the Tenancy Act is state legislation?

 

Depends what the advice is and if there is other legislation which allows PMs to advise.