mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: considered
constraint on the width of the powers which the Court may now exercise under s 14ZZP of the TAA must be the nature and extent of the "matter" in respect of which the Court is invested with Federal jurisdiction. In respect of a taxation appeal that investment of jurisdiction is implicit in the conferring, pursuant to s 14ZZ of the TAA, on a person dissatisfied with the Commissioner's objection decision of a right of appeal to this Court against that decision as an alternative to applying to the Administrative Appeals Tribunal for the review of that decision. Since 1986, it has been the correctness of the decision on the objection against the assessment which is, in terms of the formulation of "matter" in Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257 at 265, "the subject matter for determination" and the source of the "immediate right, duty or liability to be established by the determination of the Court". The Commissioner's obligation in respect of an objection is, materially, within the required period, to decide whether to: What s 14ZY does not put forward as an alternative for the Commissioner in deciding the objection is the increasing of the assessment which is the subject of the objection. That being so, it would be seem an odd result if the subject matter for determination on appeal included whether the Commissioner should not only have disallowed the objection but also whether he should have increased it. In respect of the 2001 to 2004 income years, s 170(7) of the ITAA 1936 then provided: (7) Nothing contained in this section shall prevent the amendment of any assessment in order to give effect to the decision upon any appeal or review, or its amendment by way of reduction in any particular in pursuance of an objection made by the taxpayer or pending any appeal or review. [Emphasis added] Apart from the express reference to reduction, the absence of any reference to "increase" will be noted.
Case: Re Soci&eacute;t&eacute; Schneider Electric (2002) 4 ITLR 1077
Outcome: considered
are passages in a decision of the French Conseil d'&Eacute;tat in Re Soci&eacute;t&eacute; Schneider Electric (2002) 4 ITLR 1077 which, read in isolation, might be thought to support an opposite conclusion in relation to the immateriality of economic consequences when considering whether a national CFC regime was in conflict with Article 7 of an OECD model treaty with Switzerland. For example, in referring to Article 7 of the Franco-Swiss double taxation agreement, the Conseil d'&Eacute;tat opined (at 1108): In the absence of any factor requiring a different interpretation, the 'profits' to which art 7 of the convention refers are those determined according to the rules established by the [French General Tax Code]. It follows that the court below did not make any error in deciding that there is an identity in nature between the business profits (b&eacute;n&eacute;fices) of the Paramer company, the taxation of which is attributed to Switzerland by art 7(1) of the Franco-Swiss tax treaty, and the profitable results (r&eacute;sultats beneficiaries) of the Paramer company which are taxed in France in the name of the Schneider company on the basis of the [CFC regime in the French General Tax Code].
Case: Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330
Outcome: cited
Russell's work as an accountant and his ambitions for his premises have given rise both to income tax and to goods and services tax controversies. These have come to manifest themselves in appeals under Part IVC of the Taxation Administration Act 1953 (Cth) (TAA). In an interlocutory judgement delivered last year I concluded that it was both lawfully possible for him to join his appeals in the one application and that the overlap in the underlying facts was such that it was in the interests of justice that his income tax and goods and services tax (GST) appeals be heard together: Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330. Mr Russell appeared on his own behalf on the hearing of the appeals whereas the respondent Commissioner of Taxation (the Commissioner) was represented by senior and junior counsel. It is no reflection on counsel, who provided valuable assistance, to observe that both in oral and written submissions Mr Russell argued his case with marked and memorable skill. This included the ability, not always found in litigants in person, for the most part to distinguish between his distinct roles as advocate and as witness. While I respect his skill and ability, it does not, as will be seen, follow that I accept all of his evidence. The taxation assessments, including the related assessments of penalty, each of which was affirmed upon objection by the Commissioner and which underpin the respective income tax and GST appeals are as follows. Income Tax Assessments
Case: Saffron v Commissioner of Taxation (1994) 94 ATC 4049
Outcome: considered
v Commissioner of Taxation (1994) 94 ATC 4049 (Saffron's Case) is a case which preceded the ANZ Savings Bank Case but which was decided after the 1986 amendments. Saffron's Case was an appeal from the Administrative Appeals Tribunal, not an appeal in the original jurisdiction against an objection decision. Nonetheless, in his reasons for judgement, Davies J (at 4050-4051) made the following observations of a generic nature as to the role of either this Court or the Tribunal when seized with a challenge to (termed by him a review of) an objection decision: The review authority, the Court or the Tribunal, must come to its own decision on the facts and the issues. Walsh J said in Krew's case at 4216:- "I have a duty to reach my own conclusions on the questions of fact which have to be decided and to give effect to those conclusions. .. I must make my own decisions as to the facts." Although the taxpayer may be untruthful and a tax evader, that factor, of itself, is no reason not to undertake a calculation of income tax as contemplated by the Act, if such a calculation can be made. As Walsh J said in Krew's case at 4219, "A witness upon whose word one cannot rely may yet give evidence which is true in part." In that case, although Walsh J held that he could not accept the appellant himself as a reliable witness, he nevertheless found that several of the facts alleged by the taxpayer were established as a matter of probability and accordingly that four of the amended assessments before the Court should be set aside. Moreover, in the calculation of the taxable incomes of years past, exact proof may not be available. As Burchett J said in Ma v Commissioner of Taxation (1992) 92 ATC 4373 at 4379:- '... the making of estimates upon Inexact evidence, which IS so much a feature of both judicial and administrative decision-making, cannot be uniquely excluded from appeals against betterment assessments.' If, despite the general untruthfulness of a witness and the lack of records, the Court or the Tribunal nevertheless feels satisfied, as a matter of probability, as to the existence of a relevant fact or factor, effect must be given to that conclusion. Though these observations predate by some months those made later in that year by the High Court in the ANZ Savings Bank Case , they draw upon the same cases which the High Court regarded as authoritative and are not inconsistent with the High Court's own observations. However, though the observation made by Davies J that "effect must be given to that conclusion" is no less generic than his Honour's other observations, it is necessary to recall that he was not called upon in that case expressly to decide whether it was within the Court's power to set aside the objection decision so as to increase the amount of an appellant taxpayer's taxable income. The other two judges constituting the Full Court in Saffron's Case , Gummow and Lee JJ, did not find it necessary to make such generic observations.
Case: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338
Outcome: followed
NZ Double Taxation Agreement generally follows the OECD Model Double Taxation Agreement (OECD Model). It is settled that, in construing such an agreement, a court may have regard to, inter alia, the OECD Commentary on its model agreement: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338 at 344, 356-357. The interpretative use of that type of extrinsic material is a manifestation of the recognition that a double taxation agreement is but a particular example of an international treaty. The Full Court has sounded a cautionary note in relation to the use for the purpose of interpretation of commentary published after the ratification of a double taxation agreement: McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 at 144, [42] .
Case: Thomas v FCT (1972) 46 ALJR 397
Outcome: cited
its very nature, a forestry operation looks to the longer term for its returns. I remind myself, too, that the embarking upon plantings corresponded with a drought in the region of unprecedented severity. That phenomenon and the as yet experimental quality of suitable plantation tree selection for the region serves to explain the appearance of the plantation. Further, as Thomas v FCT (1972) 46 ALJR 397 (Thomas' Case) reminds, a man may carry on business if only in a small and, as Mr McKenzie nicely put it, "hickledee pickledee" way. It is possible to see, having regard to Mr Russell's costings, how the plantings might have been regarded as being able to be turned to a profit. I did not regard these costings as but a recent invention on the part of Mr Russell. Taking all of these factors into account, I am satisfied that the partnership did over the period up to 23 February 2004 carry on an enterprise of forestry operations. It did so in an innovative, perhaps also idiosyncratic, way but with a view to profit. It is not for the Commissioner to limit the entrepreneurial spirit. It follows from this that the partnership was entitled to claim input tax credits in respect of that enterprise. The last enterprise allegedly conducted by the partnership is that of a naturist retreat. Mr Russell put forward in evidence a business plan which he said he prepared in either late 2001 or early 2002 in respect of the enterprise. It is entitled "Catherine's Sarina Nudist Retreat". The plan as detailed in that document is as follows: Catherine's Sarina Naturist Retreat The Plan To develop a high standard retreat for nudists: (a) day visitors from the greter Mackay region (b) tourists (c) the annual migration of grey-haired gypsys To purchase a situated property (now located) not too far from shopping facilities which is private or which can be made private To develop the property to suit a nudist retreat. This will involved: (a) STAGE ONE Removal of all internal fencing Installation of a spa pool Construction of inground free-form swimming pool Toilets &amp; showers facilities Covered BBQ area with gas BBQ Planting of farm forestry tees as per farm forestry plan (b) STAGE TWO Apply to council for consent Slabs for caravan sites to be poured &amp; power boxes connected Purchase &amp; renovates 3 non-working refers Gateway to be rebuilt &amp; installation of electronic gate Lining of shed &amp; purchase of 8X4 pool table [sic] Of the development activities described in this "plan", only those set out in Stage 1 have been undertaken. Mr Russell stated that he had deferred the undertaking of "Stage 2" activities as a result of his separation from his wife and because of unfinancial uncertainties introduced by the taxation investigation and subsequent assessments which remained under challenged.
Case: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: considered
In an appropriate case it may well be permissible to tender evidence on review. However, whether it is an appropriate case will depend upon the grounds of review and the circumstances of the case. I refer to the judgment of Weinberg J in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 where at 564, [454] he stated: I accept that, ordinarily, material not before the decision-maker at the time of the making of the decision will not be admissible in proceedings for judicial review.
Case: MZWPK v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1256
Outcome: applied
It is clear from the Tribunal's reasons for its decision that it found there was insufficient information to enable it to reach a level of satisfaction as to Australia's obligations to the appellant. The word 'information' in s 424A(1) imports at least some positive factual material and does not apply where the Tribunal has identified a lack of information: see SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457 per Bennett J at [23]; MZWPK v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1256 per Heerey J at [14]; and Tran v The Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1522 per Kenny J at [25]-[26]. Therefore, it is clear that s 424A(1) was not enlivened at the time it invited the appellant to the hearing and the Tribunal was not required to give the appellant notice pursuant to that section.
Case: SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457
Outcome: applied
It is clear from the Tribunal's reasons for its decision that it found there was insufficient information to enable it to reach a level of satisfaction as to Australia's obligations to the appellant. The word 'information' in s 424A(1) imports at least some positive factual material and does not apply where the Tribunal has identified a lack of information: see SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457 per Bennett J at [23]; MZWPK v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1256 per Heerey J at [14]; and Tran v The Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1522 per Kenny J at [25]-[26]. Therefore, it is clear that s 424A(1) was not enlivened at the time it invited the appellant to the hearing and the Tribunal was not required to give the appellant notice pursuant to that section.
Case: SZCJD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 609
Outcome: applied
His Honour dismissed that claim and stated at [22]-[23] that he considered that no obligation arose under that section given that at the time that the Tribunal notified the appellant that it was unable to determine the review in his favour on the material before it, the Tribunal had not reached any view on whether the adequacy of the material submitted to the delegate would be part of the reason for its decision. In support of his reasoning, his Honour indicated that he was bound to follow the decision of Heerey J in SZCJD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 609 at [38] - [43] . 15 The reason for his Honour's focus upon whether the obligation under s 424A arose at the time that the Tribunal notified the appellant that it was unable to determine the review in his favour on the material before it was that this was how the appellant particularised the breach in his grounds in the amended application. His Honour did not go on to consider whether there was a breach of s 424A at any other time.
Case: Tran v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1522
Outcome: applied
It is clear from the Tribunal's reasons for its decision that it found there was insufficient information to enable it to reach a level of satisfaction as to Australia's obligations to the appellant. The word 'information' in s 424A(1) imports at least some positive factual material and does not apply where the Tribunal has identified a lack of information: see SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457 per Bennett J at [23]; MZWPK v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1256 per Heerey J at [14]; and Tran v The Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1522 per Kenny J at [25]-[26]. Therefore, it is clear that s 424A(1) was not enlivened at the time it invited the appellant to the hearing and the Tribunal was not required to give the appellant notice pursuant to that section.
Case: Attorney-General (New South Wales) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1
Outcome: followed
These arguments are misconceived. Firstly, if the NT Registrar or the Delegate were "functus officio" he or she could not have considered the Application at all. Of course there was a statutory duty to do so. Secondly, these submissions fail to take account of that statutory duty. The Delegate was obliged to act in accordance with law, not in accordance with his own previous decision. In Attorney-General (New South Wales) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1 at 17-19, Mason CJ said: 'I am unable to perceive how a representation made or an impression created by the Executive can preclude the Crown or the Executive from adopting a new policy, or acting in accordance with such a policy, in relation to the appointment of magistrates, so long as the new policy is one that falls within the ambit of the relevant duty or discretion, as in this case the new policy unquestionably does. The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power. ... Accordingly, it has been said that "a public authority ... cannot be estopped from doing its public duty", ... .' 9 At 35, Brennan J said: 'The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the courts to protect that individual's legitimate expectations against adverse exercise of the power? I have no doubt that the answer is: none. Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.'
Case: Northern Territory of Australia v Doepel [2003] FCA 1384
Outcome: cited
In his preliminary assessment of the Application, the Delegate referred to apparent inconsistencies between the claim group description and material in earlier applications 'involving the same or substantially the same group' . The applicant submits that his final decision was infected by error in that the adequacy of the description of the claim group must be assessed by reference only to the application. However the Delegate clearly demonstrated in his reasons that he understood that s 190B(3) addressed only the content of the Application. In support of this proposition he referred to the decision of Mansfield J in Northern Territory of Australia v Doepel [2003] FCA 1384 at [51] . The reasons make no reference to extrinsic material. 31 The Delegate accepted that the Application complied with subs 61(4) but found non-compliance with subs 190B(3). The two provisions seem to establish similar criteria. The first prescribes the content of an application. The second identifies the matters as to which the Delegate had to be satisfied if the Application were to be accepted for registration. The applicant submits that the Delegate erred in finding compliance with one provision and non-compliance with the other. The Act itself draws a distinction between the two provisions. Subsection 190A(6) asserts that s 190B 'deals mainly with the merits of the claim' , and that s 190C 'deals with procedural and other matters' . This suggests that when, pursuant to s 190B(3), the Delegate considered whether the claim group was described sufficiently to permit a decision as to whether a particular person was a member thereof, he or she was dealing with 'the merits' as that term is used in s 190A(6). When, pursuant to s 190C(2), he considered whether the Application contained all the details and other information required by ss 61 and 62, he was dealing with a matter of procedure. In other words, the distinction is not between subs 61(4) and subs 190A(3) but between ss 190B(3) and 190C(2) as they apply to s 61(4). 32 In considering s 61(4) pursuant to s 190C(2) the Delegate considered whether there appeared to be a description which satisfied the requirements of the Act, without ascertaining whether or not it operated effectively to describe the claim group. He undertook the latter exercise pursuant to s 190B(3). That seems to be the only way in which he could have given effect to the two requirements. It may not matter. In order to be entitled to registration it was necessary that the Application comply with the quite precise test prescribed in s 190B(3). Any apparent confusion in the Delegate's reasons simply reflected the rather ambiguous terms of the Act.
Case: Rowntree plc v Rollbits Pty Ltd (1986-1988) 10 IPR 539
Outcome: cited
On the hearing of an application to the Federal Court by way of an appeal under s 56 of the Act from the delegate's decision, the Court may do any one or more of the following, admit evidence orally or on affidavit or otherwise; permit the examination and cross-examination of witnesses, including witnesses who gave evidence before the Registrar; order an issue of fact to be tried as it directs; affirm, reverse or vary the Registrar's decision or direction; give any judgment, or make any order, that in all the circumstances it thinks fit; order a party to pay costs to another party (s 197 of the Act). The appeal proceeding is a hearing conducted "afresh" or de novo on material properly placed before the Court ( Rowntree plc v Rollbits Pty Ltd (1986-1988) 10 IPR 539 per Needham J at 545; Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020 ; (1999) 93 FCR 365 at 377; [1999] FCA 1020 ; 45 IPR 411 422-3 per French J; Pioneer Electric Corporation &amp; Anor v Registrar of Trade Marks [1977] HCA 56 ; (1977) 17 ALR 43 per Aickin J at 46; Blount Inc. v Registrar of Trade Marks [1998] FCA 440 ; (1998) 83 FCR 50 at 59 per Branson J; Kowa Company Ltd v NV Organon [2005] FCA 1282 ; (2006) 223 ALR 27 per Lander J at [7]; Pfizer Products Inc. v Karam [2006] FCA 1663 ; (2007) 237 ALR 787 per Gyles J at [5]; and Scotch Whiskey Association v De Witt (2008) 75 IPR 280 per Jessop J at [18]). Although the appeal is conducted as a de novo hearing, the scope of the controversy to be resolved in the appeal is determined by the issues framed by the parties. Order 58, r 5(2) requires a party initiating an appeal to identify each ground relied upon to support the orders sought and particulars of each ground. Similarly, by Order 58, r 5A(2) a cross-appellant must state and thus frame the specific grounds relied upon in support of the orders the cross-appellant seeks. In that sense, an appeal from the Registrar's decision is not simply at large. In this case, NVS seeks to vary the decision by agitating the merits of the matters raised by s 44 of the Act. BAT seeks to agitate all of the matters on which it was unsuccessful.