Case: FJ Bloemen Pty Ltd v Federal Commissioner of Taxation [1981] HCA 27 ; (1981) 147 CLR 360
Outcome: cited
175 provides: " 175 The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with." This section requires there to be an actual assessment as a condition of its operation: FJ Bloemen Pty Ltd v Federal Commissioner of Taxation [1981] HCA 27 ; (1981) 147 CLR 360. It does not create a valid assessment where none has been made at all. A taxpayer dissatisfied with an assessment may object against it in the manner set out in Part IVC of the TAA. Section 177(1) in turn provides: " 177(1) The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct." At [61]ff Kenny J rejected the submission that the assessment was provisional or tentative. In so doing she reviewed the decisions of the High Court in Hoffnung, Bloemen and Richard Walter . Her Honour noted (at [63]) that in Bloemen : "Mason and Wilson JJ, with whom Stephen J agreed, said (at 378): The Bloemen notice of assessment is in form an assessment. It sets out the ascertainment of the taxpayer's taxable income and the tax payable thereon. It is therefore appropriate to bring s 177(1) into operation. Its production will put beyond contention the due making of the assessment so that the Court cannot find that no assessment was made or that, if made, it was made for an inadmissible purpose. The Simons notice, if read with the adjustment sheet, is more debatable. However, we read it as a definitive assessment by the Commissioner intended to create a legal liability to pay the tax specified, coupled with an intimation that the Commissioner will review the taxpayer's liability in a certain event. If it be assumed that the Commissioner lacks power to amend the assessment in the circumstances contemplated this does not affect our conclusion. It merely means that the Commissioner is mistaken in supposing that he has power to review. Accordingly, the notice of assessment will, on production, bring s 177(1) into play." I equally am satisfied that the assessment was intended to, and did, create a definitive liability notwithstanding that the Commissioner has acknowledged that Futuris' liability could be reviewed at a future date after the Division 19A Part IVC proceedings were complete: cf Bloemen , above at 377-378; ANZ Banking Group , at [70]. As I earlier indicated, notwithstanding the different factual settings of this matter and ANZ Banking Group , I consider there is no operative distinction in principle between the two cases. For this reason I have not analysed the relevant case law in a way that I would otherwise have done. I respectfully agree with Kenny J's analysis. Its application to the facts of this case leads necessarily to the conclusion that the Second Amended Assessment attracts the protection of s 175 and s 177(1) of the ITAA. Accordingly, such relief as Futuris is entitled to in respect of that assessment is in Part IVC proceedings and not by way of judicial review under s 39B of the Judiciary Act . Having dealt with the application on its merits, I will make no order on the Commissioner's notice of motion but will order that the application be dismissed with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 August 2006 Counsel for the Applicant: Mr B Sullivan SC with Mr T Thawley Solicitor for the Applicant: Cosoff Cudmore Knox Counsel for the Respondent: Mr A Pagone QC with Ms L Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 April 2006 Date of Judgment: 18 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1096.html