mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Binetter v Commissioner of Taxation [2003] FCA 687 ; (2003) 130 FCR 135
Outcome: discussed
In Binetter v Commissioner of Taxation [2003] FCA 687 ; (2003) 130 FCR 135, Hill J ordered the Commissioner to provide particulars. The Commissioner had made a determination under s 177F(1) of the ITAA. The proceeding was an appeal to this Court against the Commissioner's disallowance of the taxpayer's objection. 131 His Honour noted that it was not in dispute that the Court had power to order particulars where they were "necessary for the orderly disposition of the appeal" or to order discovery "where as a matter of discretion the court is of the view that it is appropriate that discovery be given" (at 137). 132 His Honour ordered that the Commissioner: (1) identify which of the determinations (under s 177F(1)) referred to in the Commissioner's SOFIC the Commissioner proposed to rely upon at the hearing; (2) identify which, if any, of the determinations the Commissioner proposed to rely upon in the alternative; (3) make available for inspection by the taxpayer documents that were before the person who made the determination or determinations, at the time or times of the making of it or them; (4) identify the steps comprising any scheme within the meaning of s 177A of the ITAA on which the Commissioner proposed to rely, indicating if any scheme was to be relied on in the alternative; (5) advise the applicant whether the Commissioner alleged that the Commissioner made a determination or determinations under s 177F(3) (for a "compensating adjustment"), and, if so, advise the name of the officer who made the determination, the date it was made and the terms of it; (6) produce for inspection the documents that were before the officer who made any determination which the Commissioner alleges was made, at the time it was made. 133 There is nothing in these orders that suggests that a taxpayer is entitled to particulars going to judicial review grounds as are sought in the present case, or is entitled to attack the making of a determination under s 177F(1) on judicial review grounds. 134 The Commissioner's discretionary power to make a determination under s 177F(1) is conditioned on the obtaining of a tax benefit by a taxpayer in connection with a scheme to which Pt IVA applies objective criteria. His Honour thought it to be in the interests of justice that the Commissioner be required to specify the determination or determinations, and the scheme or schemes, on which he would rely on the hearing. His Honour recognised the possibility that the Commissioner might put his case in alternative ways and might seek to depart from the particulars supplied (if he were to take the latter course, the matter would have to be addressed if and when the occasion arose).
Case: Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211
Outcome: followed
In Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211, the taxpayer ("Mr Sleight") appealed to the Court against an adverse objection decision. He contended that a determination by the Commissioner under s 177F was invalid because the Commissioner's discretion had miscarried because there had been a failure to consider certain circumstances personal to Mr Sleight.
Case: Dorney v Commissioner of Taxation &amp; Simons v Commissioner of Taxation [1980] 1 NSWLR 404
Outcome: discussed
FJ Bloemen Pty Ltd v Commissioner of Taxation [1981] HCA 27 ; (1981) 147 CLR 360 (" FJ Bloemen ") comprised two appeals, heard together, from decisions of the New South Wales Court of Appeal: FJ Bloemen Pty Ltd v Commissioner of Taxation (unreported) and Dorney v Commissioner of Taxation and Simons v Commissioner of Taxation [1980] 1 NSWLR 404 (" Dorney and Simons "). The appeal against the Commissioner's objection decision in the FJ Bloemen proceeding was heard by Rath J: (1978) 36 FLR 191. However, by reason of the judgments which that Court had in meanwhile delivered in the Dorney and Simons appeals, the Court of Appeal dismissed the FJ Bloemen appeal. Thus, the reasons of the Court of Appeal are to be found in the Dorney and Simons appeals.
Case: Duggan &amp; Anor v Commissioner of Taxation [1972] HCA 66 ; (1972) 129 CLR 365
Outcome: discussed
In Duggan &amp; Anor v Commissioner of Taxation [1972] HCA 66 ; (1972) 129 CLR 365 (" Duggan "), an appeal to the High Court against objection decisions, Stephen J set aside assessments under s 99A. The Commissioner had informed the taxpayer of the three grounds on which he had relied in thinking it not unreasonable for s 99A to apply. Stephen J held that while the grounds stated relevant considerations, they involved errors of fact, with the result that the Commissioner's opinion ceased to be of any legal effect. His Honour added (at 370): "[i]t is as if he has failed to reach any opinion or has reached it upon the basis of irrelevant facts". 66 Duggan is distinguishable from the present case on two grounds: first, it was a state of mind case, whereas the present case is a Commissioner's determination case; secondly, the Commissioner had positively stated the matters he had taken into account in arriving at his state of mind. 77 The Full Court affirmed his Honour's decision. The majority, Gibbs J and Stephen J, in separate judgments, thought that, although the course of reasoning the Commissioner had followed in reaching the conclusion that he was not satisfied involved errors of law, it was not open to the Court to regard the Commissioner as having had the required state of satisfaction that there was continuity of beneficial ownership. Indeed, their Honours thought that, for other reasons, on the law and the facts he could not properly have been satisfied that there was. On that basis, his state of non-satisfaction and the assessment must stand, and the appeal be dismissed. 93 Both Hutley JA and Mahoney JA made certain observations relevant to the scope of an appeal, then under Pt V of the ITAA, against an objection decision. Hutley JA said (at 411), referring to Duggan and George , that an appeal under Pt V was of "the most comprehensive kind", so that, for example, it could be shown on such an appeal that a belief by the Commissioner as to the existence of certain facts was unsound. 154 The position established by Peabody (see [119] above), Sleight (see [136] [145] above), and Syngenta (see [146] [150] above) seems to be that a distinction is to be drawn between cases in which the ITAA specifies a state of mind on which the assessment of the amount of taxable income (and tax) depends (cf Avon Downs , George , Giris , Duggan , Brian Hatch , Kolotex , WA Capital , Dalco ), and those in which it specifies, not a state of mind, but the making of a determination, as the event on which the amount of taxable income (and tax) depends (cf Jackson , Peabody , Richard Walter , Binetter, Sleight , Syngenta ). In the latter class of case, the legislature is taken to indicate that the interaction between s 177(1) of the ITAA and s 14ZZO(b) of the TAA produces the result that the Commissioner's state of mind, on the basis of which the determination was made, is part of the due making of the assessment, and cannot be put in issue by the taxpayer.
Case: Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd [1971] HCA 18 ; (1972) 128 CLR 28
Outcome: discussed
Like Avon Downs , Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd [1971] HCA 18 ; (1972) 128 CLR 28 (" Brian Hatch ") concerned the carry forward loss provisions. A necessary condition of deductibility under s 80A of the ITAA was the taxpayer company's satisfying the Commissioner concerning continuity of beneficial ownership a state of mind case. At first instance, Walsh J upheld the taxpayer's appeal, applying the passage from Dixon J's judgment in Avon Downs . The only material before the Commissioner that was before his Honour was the taxpayer's return and a record of interview. In substance, Walsh J held that on this slim material, the Commissioner had not been entitled not to be satisfied of continuity of beneficial ownership. 73 In Brian Hatch , there are fairly clear obiter dicta that upon request, the taxpayer would have been entitled to compel the Commissioner to expose his reasons for his state of mind and to identify all the material that was before him when he disallowed the objection. Again, however, there was no reference to s 177(1) or s 190(b) of the ITAA. 78 Barwick CJ dissented. His Honour said (at 541) that the Commissioner should have recorded "his relevant state of mind and the facts or his view of the facts on which it is based", and that it should not be left to the Court to draw inferences as to whether he had considered a matter. The Chief Justice added, citing his own judgment in Giris , that the Commissioner "must expose to the taxpayer, particularly if so requested , both his state of mind at the relevant time and its basis" (at 541) (emphasis added). Like the majority and Windeyer J in Brian Hatch , his Honour saw the issue as being one of fact: was the Commissioner in fact satisfied at the point of assessment or not? His Honour disagreed with the majority, however, as to the Commissioner's right to support his state of dissatisfaction at the time by a course of reasoning devised later. 154 The position established by Peabody (see [119] above), Sleight (see [136] [145] above), and Syngenta (see [146] [150] above) seems to be that a distinction is to be drawn between cases in which the ITAA specifies a state of mind on which the assessment of the amount of taxable income (and tax) depends (cf Avon Downs , George , Giris , Duggan , Brian Hatch , Kolotex , WA Capital , Dalco ), and those in which it specifies, not a state of mind, but the making of a determination, as the event on which the amount of taxable income (and tax) depends (cf Jackson , Peabody , Richard Walter , Binetter, Sleight , Syngenta ). In the latter class of case, the legislature is taken to indicate that the interaction between s 177(1) of the ITAA and s 14ZZO(b) of the TAA produces the result that the Commissioner's state of mind, on the basis of which the determination was made, is part of the due making of the assessment, and cannot be put in issue by the taxpayer.
Case: Commissioner of Taxation v Clarke [1927] HCA 49 ; (1927) 40 CLR 246
Outcome: cited
Similarly, Kitto J said (at 274-275) that the expression "due making" in s 177(1) covered "all procedural steps, other than those (if any) which go to substantive liability and so contributing to the excessiveness of the assessment" (his Honour also cited George at 207). His Honour added (at 275): "It [the expression 'due making' is s 177(1)] therefore covers the step of forming the opinion that an avoidance of tax is due to fraud or evasion, and the step of thinking that particular alterations or additions are necessary to correct an error in calculation or a mistake of fact or to prevent avoidance of tax. The correctness of these steps may be challenged on a reference to a board of review, for s. 177(1) seems clearly enough to be a provision relating only to evidence in the sense of material to be considered by judicial tribunals. (Doubtless it is for that reason that the words of exception in the sub-section, which refer to proceedings on appeal, make no mention of proceedings on a reference.)" His Honour referred to a statement by Isaacs ACJ in Commissioner of Taxation v Clarke [1927] HCA 49 ; (1927) 40 CLR 246 at 276 that the legislation does not contemplate "a curial diving into the many official and confidential channels of information to which the commissioner may have recourse to protect the Treasury".
Case: Gauci v Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 
Outcome: discussed
The operation of s 190(b) of the ITAA was explained by Mason J (dissenting) in Gauci v Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89 as follows: "Section 190(b) of the Act imposed on the appellants the burden of proving that the assessments were excessive. The appellants relied on their evidence and that of Graham [their land agent who acted for them] in order to show that the assessments were excessive. Once that evidence was rejected, the appellants' case necessarily failed. The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s. 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail." The view expressed by Mason J in this passage has been endorsed: see McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284, esp at 302-304 (Gibbs J), 306 (Stephen J), 323 (Murphy J); Macmine Pty Ltd v Commissioner of Taxation (1979) 53 ALJR 362, esp at 371 (Stephen J), 381 (Murphy J); Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 esp at 624-5 (Brennan J with whom Dawson, Gaudron and McHugh agreed, and Deane J generally agreed) (" Dalco "). Practice Note No 22, referred to at [37], is consistent with it.
Case: Kolotex Hosiery (Australia) Pty Ltd v Commissioner of Taxation [1975] HCA 5 ; (1975) 132 CLR 535 
Outcome: discussed
Kolotex Hosiery (Australia) Pty Ltd v Commissioner of Taxation [1975] HCA 5 ; (1975) 132 CLR 535 (" Kolotex ") was another case concerning the carry forward loss provisions. On the taxpayer's appeal to the High Court against the Commissioner's disallowance of its objection, the Commissioner's file was in evidence before the primary Judge, Mason J, who held that the Commissioner had been entitled to be "not satisfied" of continuity of beneficial ownership. 81 The operation of s 190(b) of the ITAA was explained by Mason J (dissenting) in Gauci v Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89 as follows: "Section 190(b) of the Act imposed on the appellants the burden of proving that the assessments were excessive. The appellants relied on their evidence and that of Graham [their land agent who acted for them] in order to show that the assessments were excessive. Once that evidence was rejected, the appellants' case necessarily failed. The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s. 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail." The view expressed by Mason J in this passage has been endorsed: see McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284, esp at 302-304 (Gibbs J), 306 (Stephen J), 323 (Murphy J); Macmine Pty Ltd v Commissioner of Taxation (1979) 53 ALJR 362, esp at 371 (Stephen J), 381 (Murphy J); Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 esp at 624-5 (Brennan J with whom Dawson, Gaudron and McHugh agreed, and Deane J generally agreed) (" Dalco "). Practice Note No 22, referred to at [37], is consistent with it. 154 The position established by Peabody (see [119] above), Sleight (see [136] [145] above), and Syngenta (see [146] [150] above) seems to be that a distinction is to be drawn between cases in which the ITAA specifies a state of mind on which the assessment of the amount of taxable income (and tax) depends (cf Avon Downs , George , Giris , Duggan , Brian Hatch , Kolotex , WA Capital , Dalco ), and those in which it specifies, not a state of mind, but the making of a determination, as the event on which the amount of taxable income (and tax) depends (cf Jackson , Peabody , Richard Walter , Binetter, Sleight , Syngenta ). In the latter class of case, the legislature is taken to indicate that the interaction between s 177(1) of the ITAA and s 14ZZO(b) of the TAA produces the result that the Commissioner's state of mind, on the basis of which the determination was made, is part of the due making of the assessment, and cannot be put in issue by the taxpayer.
Case: Macmine Pty Ltd v Commissioner of Taxation (1979) 53 ALJR 362 
Outcome: cited
The operation of s 190(b) of the ITAA was explained by Mason J (dissenting) in Gauci v Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89 as follows: "Section 190(b) of the Act imposed on the appellants the burden of proving that the assessments were excessive. The appellants relied on their evidence and that of Graham [their land agent who acted for them] in order to show that the assessments were excessive. Once that evidence was rejected, the appellants' case necessarily failed. The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s. 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail." The view expressed by Mason J in this passage has been endorsed: see McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284, esp at 302-304 (Gibbs J), 306 (Stephen J), 323 (Murphy J); Macmine Pty Ltd v Commissioner of Taxation (1979) 53 ALJR 362, esp at 371 (Stephen J), 381 (Murphy J); Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 esp at 624-5 (Brennan J with whom Dawson, Gaudron and McHugh agreed, and Deane J generally agreed) (" Dalco "). Practice Note No 22, referred to at [37], is consistent with it.
Case: Master Butchers Ltd v Commissioner of Taxation [1974] 1 NSWLR 350
Outcome: discussed
In my view, however, the Court has implied power to order particulars (cf the reference to "inherent" power to order particulars in Master Butchers Ltd v Commissioner of Taxation [1974] 1 NSWLR 350 at 356 (Mahoney J) (" Master Butchers "); Bailey and Ors v Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214 at 221 (Jacobs J), 227, 231 (Aickin J)) (" Bailey "). 74 In Master Butchers , the Commissioner contended that s 260 of the ITAA applied. The taxpayer requested that its objection be treated as an appeal to the Supreme Court of New South Wales pursuant to s 187 of that Act. The taxpayer requested particulars of the way in which the Commissioner contended s 260 applied, including particulars of the contract, agreement or arrangement relied on. The Commissioner, referring to s 190(b), replied to the effect that he reserved the right, at the conclusion of the evidence to advance such arguments based on s 260 as seemed appropriate. 88 Bailey was neither a state of mind nor a Commissioner's determination class of case. I understand Bailey , like Master Butchers , as a case concerned with the practical running of a trial. It does not determine the question whether the Commissioner should be ordered to provide particulars, not of positive assertions made by him, but of his thought processes antecedent to a positive statutorily required step that he does assert the making of a determination.
Case: McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284 
Outcome: cited
The operation of s 190(b) of the ITAA was explained by Mason J (dissenting) in Gauci v Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89 as follows: "Section 190(b) of the Act imposed on the appellants the burden of proving that the assessments were excessive. The appellants relied on their evidence and that of Graham [their land agent who acted for them] in order to show that the assessments were excessive. Once that evidence was rejected, the appellants' case necessarily failed. The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s. 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail." The view expressed by Mason J in this passage has been endorsed: see McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284, esp at 302-304 (Gibbs J), 306 (Stephen J), 323 (Murphy J); Macmine Pty Ltd v Commissioner of Taxation (1979) 53 ALJR 362, esp at 371 (Stephen J), 381 (Murphy J); Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 esp at 624-5 (Brennan J with whom Dawson, Gaudron and McHugh agreed, and Deane J generally agreed) (" Dalco "). Practice Note No 22, referred to at [37], is consistent with it.
Case: R v Associated Northern Collieries &amp; Ors [1910] HCA 61 ; (1910) 11 CLR 738
Outcome: cited
No doubt, many descriptions of the purpose of particulars can be found. It suffices to refer to that given by Isaacs J in R v Associated Northern Collieries &amp; Ors [1910] HCA 61 ; (1910) 11 CLR 738 (" Northern Collieries ") at 740: "I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms 'surprise' ... ." I see no meaningful distinction between inquiring whether the Commissioner should be required to give the particulars sought, and inquiring whether his SFIC is inadequate for not having included them: cf the taxpayer's notice of motion in Rio Tinto Ltd v Commissioner of Taxation (2004) 55 ATR 321 at 329, which sought an order that the Commissioner file and serve an SFIC "in compliance with O 52B, r 5 of the Federal Court Rules ". 75 Mahoney J held that the Court had inherent power to order further and better particulars where the requirements of justice so dictated, and cited Isaacs J in Northern Collieries at 740 (see [38] above). While his Honour accepted that in an appropriate case, the Court had power to order the Commissioner to provide further and better particulars "of a matter in issue in the proceeding" (at 356), he did not order the Commissioner to provide any of the particulars sought. For his Honour, the test to be applied was whether it appeared to the court, upon the material before it, that there was "a real and a substantial danger that the party seeking the particulars [would] be prejudiced by not knowing the nature of the case to the [sic be] made out against him" (at 357). His Honour said that in a proper case, such a party may be entitled to an order that the other party furnish particulars of "the general nature and of the constituent facts, of the case to be relied upon or to some other order appropriate in the circumstances" (ibid).
Case: Rio Tinto Ltd v Commissioner of Taxation (2004) 55 ATR 321
Outcome: cited
No doubt, many descriptions of the purpose of particulars can be found. It suffices to refer to that given by Isaacs J in R v Associated Northern Collieries &amp; Ors [1910] HCA 61 ; (1910) 11 CLR 738 (" Northern Collieries ") at 740: "I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms 'surprise' ... ." I see no meaningful distinction between inquiring whether the Commissioner should be required to give the particulars sought, and inquiring whether his SFIC is inadequate for not having included them: cf the taxpayer's notice of motion in Rio Tinto Ltd v Commissioner of Taxation (2004) 55 ATR 321 at 329, which sought an order that the Commissioner file and serve an SFIC "in compliance with O 52B, r 5 of the Federal Court Rules ".