Case: McCormack v Commissioner of Taxation [2001] FCA 1700 , 114 FCR 574
Outcome: cited
to those other statutory provisions which authorise the issue of a notice requiring the production of information or documents, however, has been the concern of the Court to ensure that each of the statutory demands that may be authorised is construed in a practical and common sense manner. Notwithstanding the difference in language as between s 155 of the 1974 Act and s 264 of the 1936 Act, for example, a similar approach has been adopted when considering the degree of certainty required in a notice issued under s 264: McCormack v Commissioner of Taxation [2001] FCA 1700 at [50] , [2001] FCA 1700 ; 114 FCR 574 at 590 per Sackville J. Ambiguity may be discerned by those with initiative to find uncertainty where none really exists. But that is not the manner in which any of the notices have been construed in the decided cases. The more obscure a category of " document or thing " may be, the greater may be the imperative for that " document or thing " to be described with a degree of specificity or definiteness so that the person upon whom a statutory notice is given may be capable of identifying that " document or thing " and thereafter producing it. It may be necessary at some stage to give greater content to the constraints that are imposed by the use of the term " specify " in s 29. That term may well require a greater degree of precision in the identification of the " document or thing " required to be produced than has been found appropriate in other statutory contexts. That greater degree of precision emerges from the statutory language employed in s 29. And reason for greater specificity may also be required by the very generality of the power conferred by s 29 upon an examiner. There is no express requirement, for example, that a notice issued under s 29 identify on its face the particular ambit of the " special ACC operation/investigation " in respect to which the " document or thing " is considered to be " relevant ". There is thus no requirement to identify anything as to the surrounding circumstances, however broadly they may be expressed, within which a person served with a notice can consider the factual or other context within which the power is being exercised. Section 264(1)(a) is not so confined and permits what has been described as a " fishing expedition ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 515 at 535 to 536 per Mason J. Section 264(1)(a) may only be confined by the need to ensure that that power is exercised for the broadly expressed purposes elsewhere set forth in the Income Tax Assessment Act 1936 (Cth): Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 659 to 660. A notice issued under s 264(1)(a) need not reveal on its face that the Commissioner is entitled to require the information specified in the notice; it is enough for the notice or the covering letter to record that the information is required for the purposes of the 1936 Act: McCormack v Commissioner of Taxation [2001] FCA 1700 at [46] , [2001] FCA 1700 ; 114 FCR 574 at 589 per Sackville J. But those purposes, no matter how broadly expressed, impose some constraint.