Case: Cumins v Deputy Commissioner of Taxation [2006] FCA 1847
Outcome: followed
However, it was not until the respondent's group certificate was lodged by his employer with the applicant on 14 August 2005, that the applicant was able to identify that the above PAYG instalments had been received on behalf of the respondent: Cumins v Deputy Commissioner of Taxation [2006] FCA 1847 at [5] . The respondent submits accordingly that the effective date of payment of $9,516 on his behalf was 14 August 2005 and that this amount relating to the 2005 tax year should have been included in item 5 of the Schedule to the bankruptcy notice, as "payments made". 22 The last two payments were received after the date of the judgment and before the issue of the bankruptcy notice. 23 The general interest charge credits, said to have been omitted from item 5 of the Schedule to the bankruptcy notice, related to seven garnishee payments totalling $7,350 for each of the months November 2004 to May 2005 inclusive. Each garnishee payment was in the amount of $1,050 and was said to have been mailed by the respondent's employer about the beginning of each month from December 2004 to June 2005 inclusive, to the applicant to an address - GPO Box 4596SS Melbourne Vic 3000. Each payment, the respondent submits, was, by virtue of s 160 of the Evidence Act 1995 (Cth), deemed to have been received on the fourth working day after posting and thereby, in each case to have been received by the applicant for the purposes of s 8AAZM of the Taxation Administration Act 1953 (Cth) . However, the applicant says that the amount of these seven payments, totalling $7,350 was not received until 22 September 2005 and was then credited to the respondent's account on that date. 52 In any event, the applicant's considered view was that the PAYG payments of $9,516 in respect of the 2005 tax year did not give rise to any entitlement in the respondent to have that amount included in item 5 of the Schedule to the bankruptcy notice. That view was vindicated by Siopis J at first instance: Cumins v Deputy Commissioner of Taxation [2006] FCA 1847 and on appeal: Cumins v Deputy Commissioner of Taxation [2007] FACFA 207 in proceedings in which the respondent sought to have the bankruptcy notice set aside for this very reason. 53 The respondent's further and better particulars of its grounds of opposition assert, in effect, that he did not have, at the times of the hearings at first instance and on appeal, the evidence disclosing the details of the PAYG payments made. This is of no consequence. Both cases dealt with the total amount of $9,516. It matters not, in the result, that some payments were received before, and some after, the judgment date. 55 If I am wrong about the reach of para [36] and it is sufficient to embrace the alleged misstatements relied upon, I, nonetheless, am not persuaded that there were such misstatements in the bankruptcy notice as asserted. As to the $9,516 PAYG payments, the respondent submits that an issue estoppel does not arise between these parties in the petition proceedings by reason of the matters decided by Siopis J and the Full Court. It is unnecessary to decide that question. I have considered both cases and respectfully am in agreement with the reasons and conclusions of Siopis J, particularly at [11] where his Honour said: I reject the applicant's submission. In my view, the question of when the credit in respect of the PAYG deductions accrued to the applicant is to be assessed by reference to s 18 15(1) of Sch 1 of the TAA. There is no reason not to give effect to that statutory provision. It follows that the applicant only became entitled to the credit once the assessment was made for the tax year in respect of which the PAYG deductions were made. In those circumstances, I find that at the time of the issue of the bankruptcy notice on 17 March 2006, the sum of $9516 did not comprise an amount in respect of which a deduction should have been recorded in the bankruptcy notice, as either a payment made or a credit due. The bankruptcy notice did not, therefore, overstate the amount due and was not invalid. I decline to set it aside. 56 There was no challenge to this particular finding on appeal. Nonetheless, the Full Court at [39] noted its agreement with it. 57 The respondent further submits that the proper characterisation of the PAYG instalments in issue for the purposes of item 5 of the bankruptcy notice is as "payments made". This, he says, avoids the confusion generated by focusing on the phrase "credits allowed" and meshing that with the giving of administrative credits under the TAA when a tax assessment is made.