Case: Commissioner of Taxation v ANZ Savings Bank Ltd [1994] HCA 58 ; (1994) 181 CLR 466
Outcome: considered
he had, similarly, earlier also not sought in the High Court in Commissioner of Taxation v ANZ Savings Bank Ltd [1994] HCA 58 ; (1994) 181 CLR 466 at 481 ( ANZ Savings Bank Case ), the Commissioner did not seek to rely upon the legislative stipulation, previously found in s 200B(1) of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936), now found in s 14ZZQ(1) of the TAA, that "when the order of the Federal Court in relation to the decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision". Thus, in the present case, the Commissioner did not contend that this section authorised the issuing of an amended assessment so as to give effect to the conclusion which I had reached as to the income tax assessment for the 2001 income year had not been shown to be excessive because it understated Mr Russell's true taxable income for that year. That position was adopted even though then, as now, this Court is empowered on the hearing and determination of an appeal against an objection decision, to "make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision": see s 14ZZP of the TAA, which replicates a like conferral of power found at the time of the ANZ Savings Bank Case in the then s 199 of the ITAA 1936. It is, on further reflection prompted by consideration of these supplementary submissions, by no means impossible to conceive of a basis upon which, in the circumstances of the present case, power would exist to order remission to the Commissioner for the purpose of making the requisite amendment. Section 200B of the ITAA 1936 was one of the provisions introduced into the ITAA 1936 by the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth) (Transfer of Jurisdiction Act) to which I made reference in my earlier reasons for judgment. In their joint judgment in the ANZ Savings Bank Case (at 481), Brennan, Deane, Dawson and Toohey JJ observed of it that it "has an essentially mechanical operation, aimed at ensuring that in the absence of a power in the Tribunal or a court itself to amend an assessment the Commissioner will do so in order to implement a decision of the Tribunal or a court". In a footnote to this passage their Honours note that such a power was removed from the courts by the Transfer of Jurisdiction Act. The way in which their Honours describe this section and the tenor of their joint judgment in relation to the then s 190(b) and s 199(1) of the ITAA 1936 does not, with respect, suggest that they apprehended that a consequence of the amendments made by the Transfer of Jurisdiction Act was that a sequel to the Commissioner's being able to support an assessment on a taxation appeal on a ground not taken into account at the time of assessment might be that it was no longer possible for that assessment to be amended so as to give effect to the basis upon which the Commissioner had successfully supported the assessment before a court. Rather, all it suggests is that they considered that the change wrought by the Transfer of Jurisdiction Act was, in substance, nothing more than to the way in which necessary amendment of the assessment was to occur, ie by administrative action by the Commissioner instead of, as had hitherto been the case, by court order; hence the description, "mechanical".