Law Council of Australia

Business Law Section

Forsyth/Pose Scholarship

The Forsyth/Pose Scholarship is offered by the Business Law Section of the Law Council of Australia (BLS) for papers on a topic in the field of taxation law. It was offered for the first time in 2013 to commemorate leading taxation law practitioners Neil Forsyth QC and Kevin Pose. Both were long-standing members of the BLS specialist Taxation Committee.

Neil Forsyth QC was one of Australia’s foremost tax advisers from the 1980s until his untimely death in 1997. He was immensely learned, personally charming and incredibly generous to his colleagues. He was graced with a powerful intellect, strong work ethic, commitment to justice and a profound knowledge of all aspects of taxation and commercial law. Neil had an incisive sense of humour and not surprisingly he was one of the Bar’s most esteemed and liked members. He was a founding member of the BLS Taxation Committee.

Kevin Pose was a well established tax academic at University of Melbourne before reading with Neil Forsyth at the Bar. Kevin left the Bar to establish the tax team at Arthur Robinson and Hedderwicks (now Allens) and became one of Australia’s foremost tax practitioners and scholars. Kevin was one of the subscribers in support of the memorandum advocating the creation of the BLS and one of the founding members of the BLS Taxation Committee. He was gentle, honest, unassuming and diplomatic. The tax community suffered a sad loss with his untimely death in 2010.

This scholarship recognises that Neil and Kevin played a central role in developing and mentoring the careers of many young lawyers and were always concerned to ensure that they gave younger lawyers the opportunity to demonstrate and develop their talents.
 

Forsyth/Pose Scholarship 2024 round

The 2024 round for the Forsyth/Pose Scholarship is now open.
 

How to apply

Applications must be submitted on an official application form. Please submit applications to ScholarshipsBLS@lawcouncil.au by 5pm, 31 August 2024 AEST

If you have any questions about the scholarship, please contact the Section via email at ScholarshipsBLS@lawcouncil.au.

Previous winners

Mr Dominik Breznik was awarded the 2023 Forsyth Pose Scholarship for his paper 'The Application of Capital Gains Tax to Partnership Assets: Challenges and Reform'. This paper argues that the design of Australia's capital gains tax regime in respect of partnership assets was influenced by an assumption that partners hold proprietary interests in individual partnership assets. Following an analysis of the history of this legislation, recent case law establishing that partners in fact hold no such interest is explored. It is then argued that the design of the regime has given rise to technical imprecision and conceptual inconsistency in the relevant legislation. Finally, proposed reforms of the regime are examined. In particular, the practice of His Majesty's Revenue and Customs in the United Kingdom is considered, and suggestions for aspects of this practice to be adopted and modified for the Australian regime put forward.

Mr Patric Phelan was awarded the 2022 Forsyth Pose Scholarship for his paper "Beneficial Ownership: An Unsettled Concept in Double Taxation Agreements". This paper examines the concept of beneficial ownership in international taxation which, despite its significance in determining taxpayers’ access to concessional withholding rates on dividend, interest and royalty income under tax treaties, is an undefined term which has remained challengingly ambiguous and unsettled. It reviews interpretations and guidance by national courts and tax authorities along with OECD and scholarly commentary to examine how the concept may be understood today. This is done with a view to exploring the opportunity in developing an internationally accepted meaning which could provide more certainty to taxpayers and administrators.

Patric is a Law and Policy Design Officer at the Australian Taxation Office. Having rotated in the Treaties and Diverted Profits Tax teams as part of the 2021 ATO Graduate Program, he currently works in Policy, Analysis and Legislation on new measures and advocacy affecting small business. He holds a BA/LLB from Macquarie University and is undertaking a Master of Taxation at the University of New South Wales.

Mr Mitchell Cleaver was awarded the 2020 Forsyth Pose Scholarship for his paper "What is Absolute Entitlement?”. The language of ‘absolute entitlement’ appears in key provisions in the Australian capital gains tax regime relating to trusts, yet its meaning is controversial and under-theorised. His paper examines conceptions of ‘absolute entitlement’ at general law and under statute. It argues that the language has wider currency than is commonly assumed and that the reliance upon Saunders v Vautier has distracted from the important question of statutory construction: what qualifications on entitlement are legally relevant for the purpose at hand? The paper highlights the need for care when analysing statutory schemes which appear to pick up general law language and concepts and when considering judicial characterisations of equitable estates and interests.

Mitchell is an Associate in the tax team at Allens. He has degrees in law and history from the University of Sydney (2010–2016) and a Master of Law from the University of Cambridge (2015–2016). He was Tipstaff to the Hon. Justice Julie Ward, Chief Judge in Equity of the Supreme Court of New South Wales (2017) and has lectured part-time in Equity and Trusts at the University of Sydney (2016–2019) and the University of New South Wales (2019–2020).

The 2019 Forsyth Pose Scholarship was awarded to Mr Joseph Tranzillo for his paper "Double Taxation Agreements: Shield or Sword". Following the Full Court of the Federal Court’s decision in Satyam, the paper sets out that the ‘shield and sword’ thesis does not determine the application and interpretation of DTAs in Australia.

The taxation impacts of Australia’s DTAs can only be ascertained by having proper regard to the context, object and purpose of the DTA provisions and the legislative mechanisms by which DTA provisions become part of the domestic tax law in Australia. The paper explores the history of the ‘shield and sword’ thesis in Australia by examining the views of Australian courts and tribunals, the Commissioner, academics and practitioners.

Joseph concludes that the principles distilled in Satyam put to bed the ‘shield and sword’ thesis in Australia. Joseph is a consultant in KPMG Law’s Tax Dispute Resolution and Controversy team. Prior to joining KPMG, he previously worked in the Tax Counsel Network at the Australian Taxation Office, where he specialised in international tax. Joseph is also a writer and editor of interpretation NOW! which is a monthly publication on recent developments in statutory interpretation. He has recently completed a BA/LLB (Hons) from the Australian National University.

The 2018 Forsyth Pose Scholarship was awarded to Mr Heydon Wardell-Burrus for his paper entitled, “Corporate Tax Residency: Clarity and Consequences”, which analyses the justification for the Commissioner's Taxation Ruling 2018/5 in response to Bywater Investments. He argued that the Commissioner's revised view arises from a misreading of both Bywater Investments and Malayan Shipping.

He argued that while the same activities can satisfy both the central management and control in Australia test and the carrying on business in Australia test, satisfying the former does not necessarily involve satisfying the latter. Heydon distinguishes his view from those adopted by other commentators on corporate tax residency including Professor Michael Dirkis and Robert Deutsch.

Heydon is a Senior Associate in the tax team at Allens, specialising in international tax and tax disputes. He is also a Chartered Tax Advisor, Co-Chair of the Tax Institute's Tax Disputes Program Committee and Chair of the NSW Young Lawyer's Taxation Committee. He has a BA (Hons) / LLB (Hons) from the University of Sydney where he is currently completing an LLM in tax. Heydon is a 2019 Fulbright Scholar and will study international tax and the recent United States tax reforms in the 2019/20 academic year.

Mr Myles Bayliss was awarded the 2017 Forsyth Pose Scholarship for his paper ‘Universal Basic Income: The Potential Impact on the Australian Tax System’. Myles' paper focuses on the UBI welfare policy in the Australian tax law context. In particular the paper examines whether a UBI policy would be considered constitutional and how the introduction of a UBI in Australia could impact the tax system and law. Drawing on the analysis of the High Court in Pape v Commissioner of Taxation, Myles argues that a UBI would be within the scope of powers granted by the Constitution. He posits that the introduction of a UBI could also affect positive change on the tax system by necessitating tax reform resulting in a less complex and more effective tax system.

Mr Peter Scott was awarded the 2016 Forsyth Pose Scholarship for his paper ‘Insecure Creditors and the Commissioner of Taxation: the Crown Priority Zombie’. Drawing on his experience working on insolvency related tax issues at Arnold Bloch Leibler, Peter’s paper examines the extent to which the purported removal of Crown priority in the 1980s and early 1990s has been successful. He argues that the Commissioner of Taxation remains in a very privileged position vis-à-vis other creditors in the context of insolvent companies, and is often able to assert effective priority over both secured and unsecured creditors. In this context, Peter concludes that both secured and unsecured creditors might more aptly be described as ‘insecure creditors’.

Mr Joel Emery was awarded the 2015 Forsyth Pose Scholarship for his paper 'Decoding the Regulatory Enigma: How Australian Regulators should Respond to the Tax Challenges Presented by Bitcoin'. Drawing on international experience, this paper examines the two major tax challenges presented by Bitcoin and similar digital currencies: ascertaining how they should be treated by Australian tax law, and designing a system for their effective regulation. The paper argues that not only is treating Bitcoin as money a defensible interpretation of the current law, but, more importantly, a regulatory approach that fosters the development of digital currency businesses, which act as intermediaries to digital currency transactions, may provide an effective solution to the long-term regulations of such technologies.

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