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28 Austl. Tax F. 7 (2013)

handle is hein.journals/austraxrum28 and id is 1 raw text is: Justice Hill and the autopoiesis of income tax law John Prebble* Abstract The theory that law may best be understood as an autopoietic system has gained considerable ground since Luhmann advanced it in 1981. Nevertheless, there have been few endeavours to apply the theory in any practical way or to employ it to analyze particular areas of law. In Autopoiesis and GeneralAnti-Avoidance Rules (2010) 21 Critical Perspectives on Accounting, 545, Geraldine Hikaka and the present author proposed the thesis that Luhmann's theories usefully illuminate the field of income tax law. The present article illustrates this thesis by analyzing a leading case from each of the Privy Council and the High Court of Australia, namely Europa Oil (NZ) Ltd v Commissioner of Inland Revenue and Federal Commissioner of Taxation v South Australian Battery Makers Pty Ltd. The article argues that the autopoietic nature of income tax law presents challenges to the judicial process that, as these cases illustrate, lead to income tax law becoming detached from the business profits that are an important part of its subject matter The article then turns to Macquarie Finance Ltd v Federal Commissioner of Taxation, one of the last tax judgments of the late Justice Graham Hill. The author argues that in Macquarie Finance Ltd Justice Hill demonstrated a rare, almost unique, ability among BA, LLB (Hons) Auckland, BCL Oxon, JSD Cornell, Inner T'emple, Barrister, Professor and former Dean of Law, Victoria University of Wellington, Gastprofessor Institut for Osterreichisches und Internationales Steuerrecht, Wirtschaftsuniversit it Wien; Adjunct Senior Research Fellow, Monash University, Melbourne. 7

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