Are the Commissioner of Taxation's recovery powers fettered by state moratorium and limitation of actions legislation?

Article Abstract:

The Australian courts' decisions that the Commissioner of Taxation's recovery powers can not be modified by state legislation are valid based on section 109 of the Commonwealth Constitution. Section 109 gives priority to Commonwealth laws over state laws, making inconsistent state laws invalid. Part 6 of the 1936 Income Tax Assessment Act makes the Commissioner responsible for all tax collection and recovery. Therefore, the limitation of actions and court orders for tax payment by installments in the Judiciary and Limitations of Actions Acts interfere with part 6 and so are invalid.

Tax Law, Public Finance Activities, Interpretation and construction, Cases, Constitutional law, Constitutional interpretation, Tax collection, Limitation of actions (Taxation), Statute of limitations (Taxation)

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Statutory moratorium on proceedings against a company

Article Abstract:

A comparison of the statutory moratoria established under Australian, US and UK law to protect insolvent businesses and promote rehabilitation reveals that such provisions are only economically justifiable in those instances where the business has a real chance of survival. Avoidance of the economic harms resulting from liquidation is used to justify policies that prefer rescuing corporations to allowing creditors to exercise their rights. Protection of failing businesses leads to the economically inefficient result of higher interest rates and reduced capital for other businesses.

Business Failures, United Kingdom, United States, Comparative analysis, Priorities of claims and liens, Bankruptcy reorganizations, Bankruptcy reorganization

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Limits on a lender's right to repayment on demand: construction, implication and good faith?

Article Abstract:

An implied duty of good faith and fair dealing for lenders toward borrowers should not be adopted. Traditional doctrines of construction or implied terms should be applied to place limitations on recognition of lenders' express contractual rights in some cases. Requiring an implied duty of good faith would have undesirable consequences for both borrowers and lenders.

Loans, Good faith (Law)

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