Case: Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499
Outcome: cited
264 of the Income Tax Assessment Act 1936 (Cth) likewise employs different language to that employed by s 29 of the 2002 Act. Section 264 authorises, subject to its terms, a notice to be given by the Commissioner requiring a person " to furnish him with such information as he may require ... ". Gibbs ACJ said that " (t)o be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 525. Difficulty confronting a person in properly construing a notice is not sufficient to render a s 264 notice invalid. Mason J referred to the expression found in s 264(1)(b) " relating thereto " and continued at 537: It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty. The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner's powers. To so hold would be to impose an impossible burden on the Commissioner. A notice which is valid under s 264 may thus be " of considerable breadth ": Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 193 per Hill J. His Honour there further observed that the validity of a notice should not be " approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it ": (1989) 25 FCR 187 at 208. Other statutory provisions stand in a different position. Section 264 of the 1936 Act, for example, is subject in the case of s 264(1)(b) to some constraint by reason of the notice being one " relating " to a person's income &#8212; there may thus be reason to at least query the validity of a notice requiring the production a document having no apparent relevance to any person's " income or assessment ". When this power is sought to be exercised, attention has been directed to that information which must be conveyed to the person receiving the notice: Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499. Mason J there observed at 537: It is not in dispute that a notice given under par. (1) (b) may validly require the production of something less than all the books, documents and other papers in the custody or control of the recipient relating to the income or assessment of the named person. It may, for example, specify particular documents. Such a notice, if correctly drawn, will make it clear that the requirement extends to the particular documents because they are included in the class of documents of which the Commissioner is authorized to require production. As the Commissioner's coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid. It will in my view conform to those limitations only if it clearly confines the documents to be produce to the class of which the Commissioner is authorised to require production, though it may go on to include particular documents on the footing that they fall within that class. If not so limited, the notice fails on its face to express the limitation which the section places on the Commissioner's authority ... His Honour concluded at 539: ...the demand for production must be so formulated that it expresses the limitation impose[d] by the section. After expressing the view that a notice issued under s 264(1)(b) must identify the documents required to be produced with " sufficient clarity ", Gibbs ACJ continued at 525: However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind &#8212; a requirement to produce documents relating to the income or assessment of some person &#8212; and a notice requiring the production of documents not so related is beyond the scope of the power. See also: Jacobs J at 541 to 542; Murphy J at 547. See also: Hart v Commissioner of Taxation [2005] FCA 1748 at [95] to [97], [2005] FCA 1748 ; 148 FCR 198 at 227 to 228 per Greenwood J. 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.