mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Briglia v Federal Commissioner of Taxation (2000) ACT 4247
Outcome: referred to
is a voluminous body of case law on the interpretation and effect of s 175 and s 177. For present purposes it is sufficient to say that the protection of s 177(1) and s 175 will be lost (a) if the Commissioner has not made a bona fide attempt to exercise the power of assessment; or (ii) if the alleged "assessment" is tentative or provisional in that it does not create a definitive liability: see e.g. Briglia v Federal Commissioner of Taxation (2000) ACT 4247 at 4249 where many of the cases relied upon in the present proceeding are referred to; see also ANZ Banking Group , at [33]-[37]. It is unnecessary here to repeat what has earlier been said about Div 19A of Pt IIIA of the ITAA other than to reiterate that it provides for the working out of capital gains and losses where assets have been transferred between companies under common ownership. Part IVA of the ITAA is an anti-avoidance regime introduced into the Act in 1981. It is brought into operation upon the making of a determination by the Commissioner pursuant to s 177F of the Act. That section provides the Commissioner with a discretion to cancel a tax benefit where such a benefit has been, or would but for the section be, obtained in connection with a scheme to which the Part applies. It is unnecessary for present purposes to describe the scheme that the Commissioner was satisfied existed relating to the Walshville float, although I would note that, in the Commissioner's view, it involved both declarations of dividends by Bristile and Vockbay and the capitalisation of debts owed to Vockbay and Futuris respectively following those declarations of dividend.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
contentions are premised on the uncontroversial proposition in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [57] that: "... a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction." From the Commissioner's discovered documents set out in part earlier it is contended that it is clear that the Commissioner incorrectly formed the view: (a) that he was entitled to calculate the taxable income by aggregating the amounts of $19,950,088 and $82,950,090 and thus by purporting in effect to reduce the cost base by the aggregate amount of $102,900,178, whereas Futuris had only ever treated the provisions of Division 19A as increasing cost base by the amount of $82,950,090; (b) that he was entitled to calculate the taxable income of Futuris in an amount which was $102,900,178 greater than the taxable income as calculated under the Original Assessment notwithstanding that such taxable income was $19,950,088 greater than the highest amount of the taxable income which the Commissioner contended to be the taxable income on which tax should be paid for the 1998 year; (c) that he would, if his views in relation to the operation of Division 19A proved to be correct, at some future time make a compensating adjustment pursuant to s 177F(3) presumably for the purpose of reducing the taxable income by an amount of $19,950,088 (although the amount of any future contemplated compensating adjustment was not identified). The Commissioner therefore took the view that he was entitled to overstate the taxable income in making the Second Amended Assessment because it could subsequently be reduced pursuant to a compensating adjustment under s 177F(3) when such was not the case. In this, it is said, the ANZ Banking Group case (outlined below) was distinguishable.
Case: Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175
Outcome: cited
consequence of the Commissioner's purporting to issue an "assessment" stating amounts of "taxable income" and "tax payable" which he knew to be incorrect were that the purported "assessment" was an unauthorised exercise of the power to assess and was not a "valid assessment". Reliance in this is placed on the decision of the Full Court of this Court in Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175. Alternatively, it is said relying upon observations of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 237, that the Second Amended Assessment was not definitive of the taxpayer's liability. Because of the envisaged later use of s 177F(3) to revise the figures in some way, the notice of assessment was issued subject to "revision" in the sense discussed in Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 and in Richard Walter .
Case: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168
Outcome: cited
consequence of the Commissioner's purporting to issue an "assessment" stating amounts of "taxable income" and "tax payable" which he knew to be incorrect were that the purported "assessment" was an unauthorised exercise of the power to assess and was not a "valid assessment". Reliance in this is placed on the decision of the Full Court of this Court in Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175. Alternatively, it is said relying upon observations of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 237, that the Second Amended Assessment was not definitive of the taxpayer's liability. Because of the envisaged later use of s 177F(3) to revise the figures in some way, the notice of assessment was issued subject to "revision" in the sense discussed in Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 and in Richard Walter . 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."
Case: Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39
Outcome: cited
consequence of the Commissioner's purporting to issue an "assessment" stating amounts of "taxable income" and "tax payable" which he knew to be incorrect were that the purported "assessment" was an unauthorised exercise of the power to assess and was not a "valid assessment". Reliance in this is placed on the decision of the Full Court of this Court in Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175. Alternatively, it is said relying upon observations of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 237, that the Second Amended Assessment was not definitive of the taxpayer's liability. Because of the envisaged later use of s 177F(3) to revise the figures in some way, the notice of assessment was issued subject to "revision" in the sense discussed in Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 and in Richard Walter .
Case: Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211
Outcome: cited
case against the Commissioner, it is said, is (at its absolute highest) that the Commissioner misconstrued the terms of s 177F(1). Futuris maintains, presumably, that the Commissioner could have given effect to the inclusion of the whole of the $82,950,090 tax benefit sought to be cancelled by adding only $63,000,002 to the first amended assessment. To this the Commissioner says: (a) an erroneous view of the terms of s 177F(1) does not amount to bad faith; (b) the fact that he might have achieved his result through an alternative means does not mean that the construction acted upon was not open to him. The Commissioner has a discretion either to include only part of a tax benefit under s 177F(1) or to include the whole of the amount and, at some time thereafter, to make a compensating adjustment under s 177F(3): Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 at [114] and [115]; ANZ Banking Group at [48], [49], [57], [73]; Asiamet (No 1) Resources Pty Ltd v Commissioner [2003] FCA 35 ; (2003) 126 FCR 304 at 340.
Case: Asiamet (No 1) Resources Pty Ltd v Commissioner [2003] FCA 35 ; (2003) 126 FCR 304
Outcome: referred to
case against the Commissioner, it is said, is (at its absolute highest) that the Commissioner misconstrued the terms of s 177F(1). Futuris maintains, presumably, that the Commissioner could have given effect to the inclusion of the whole of the $82,950,090 tax benefit sought to be cancelled by adding only $63,000,002 to the first amended assessment. To this the Commissioner says: (a) an erroneous view of the terms of s 177F(1) does not amount to bad faith; (b) the fact that he might have achieved his result through an alternative means does not mean that the construction acted upon was not open to him. The Commissioner has a discretion either to include only part of a tax benefit under s 177F(1) or to include the whole of the amount and, at some time thereafter, to make a compensating adjustment under s 177F(3): Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 at [114] and [115]; ANZ Banking Group at [48], [49], [57], [73]; Asiamet (No 1) Resources Pty Ltd v Commissioner [2003] FCA 35 ; (2003) 126 FCR 304 at 340. Her Honour rejected the view that in every case the Commissioner was obliged to make a determination under s 177F(3) at the same time as he made a s 177F(1) determination or, in any case, prior to issuing any assessment to give effect to the s 177F(1) determination. She rejected the submission that Hill J had held to the contrary in Commissioner of Taxation (Cth) v Jackson (1990) 27 FCR 1 at 16-18. That submission would furthermore, in her Honour's view, be at odds with the Full Court decision in Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442. In any event, Kenny J accepted the view of Emmett J in Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375 at [40] and in Asiamet (No 1) Resources, above, that the Commissioner may defer exercising his discretion until the outcome of a Part IVC decision is known.
Case: Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442
Outcome: cited
Honour rejected the view that in every case the Commissioner was obliged to make a determination under s 177F(3) at the same time as he made a s 177F(1) determination or, in any case, prior to issuing any assessment to give effect to the s 177F(1) determination. She rejected the submission that Hill J had held to the contrary in Commissioner of Taxation (Cth) v Jackson (1990) 27 FCR 1 at 16-18. That submission would furthermore, in her Honour's view, be at odds with the Full Court decision in Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442. In any event, Kenny J accepted the view of Emmett J in Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375 at [40] and in Asiamet (No 1) Resources, above, that the Commissioner may defer exercising his discretion until the outcome of a Part IVC decision is known.
Case: Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375
Outcome: cited
Honour rejected the view that in every case the Commissioner was obliged to make a determination under s 177F(3) at the same time as he made a s 177F(1) determination or, in any case, prior to issuing any assessment to give effect to the s 177F(1) determination. She rejected the submission that Hill J had held to the contrary in Commissioner of Taxation (Cth) v Jackson (1990) 27 FCR 1 at 16-18. That submission would furthermore, in her Honour's view, be at odds with the Full Court decision in Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442. In any event, Kenny J accepted the view of Emmett J in Metal Manufacturers Ltd v Commissioner of Taxation (Cth) (1999) 43 ATR 375 at [40] and in Asiamet (No 1) Resources, above, that the Commissioner may defer exercising his discretion until the outcome of a Part IVC decision is known.
Case: Potts v Dennis James &amp; Co Pty Ltd (1995) 17 ACSR 770
Outcome: cited
In considering the Notice to Produce, it is necessary to bear in mind that it differs from a subpoena in that it is addressed to a party who will generally have a greater awareness of the issues, details and history of the matter than a stranger to the proceedings: see Trade Practices Commission v Australian Feather Mills Pty Ltd (1990) 26 FCR 555 at 557-8. By O 33 r 12 of the Federal Court Rules ("FCR"), a Notice to Produce has the same coercive effect as a subpoena issued under O 27 of the FCR: see Potts v Dennis James &amp; Co Pty Ltd (1995) 17 ACSR 770 at 779. Under O 27 r 3(4)(a), a subpoena must identify the document to be produced. The Notice to Produce also has the effect that in the event of non-production, secondary evidence can be given of the contents.
Case: Trade Practices Commission v Australian Feather Mills Pty Ltd (1990) 26 FCR 555
Outcome: referred to
In considering the Notice to Produce, it is necessary to bear in mind that it differs from a subpoena in that it is addressed to a party who will generally have a greater awareness of the issues, details and history of the matter than a stranger to the proceedings: see Trade Practices Commission v Australian Feather Mills Pty Ltd (1990) 26 FCR 555 at 557-8. By O 33 r 12 of the Federal Court Rules ("FCR"), a Notice to Produce has the same coercive effect as a subpoena issued under O 27 of the FCR: see Potts v Dennis James &amp; Co Pty Ltd (1995) 17 ACSR 770 at 779. Under O 27 r 3(4)(a), a subpoena must identify the document to be produced. The Notice to Produce also has the effect that in the event of non-production, secondary evidence can be given of the contents.
Case: Sparnon v Apand Pty Ltd (1996) 68 FCR 322
Outcome: cited
for the respondent has referred me to the decision of Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 to support the proposition that the onus lies upon the applicant to establish the required dominant purpose as an objective fact although based upon the evidence which is given. Counsel for the respondent also referred to the decision of the New South Wales Court of Appeal in Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519; [2005] NSWCA 321 , particularly per Tobias JA at [57] [58].
Case: Westpac Banking Corporation v 789Ten Pty Limited (2005) 55 ACSR 519; [2005] NSWCA 321
Outcome: cited
for the respondent has referred me to the decision of Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 to support the proposition that the onus lies upon the applicant to establish the required dominant purpose as an objective fact although based upon the evidence which is given. Counsel for the respondent also referred to the decision of the New South Wales Court of Appeal in Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519; [2005] NSWCA 321 , particularly per Tobias JA at [57] [58].
Case: R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194
Outcome: referred to
applicant also relies on s 164 of Schedule 1, which permits a member of an organisation to apply for an order giving directions for the performance or observance of any of the rules of the organisation by any person who is under an obligation to perform or observe those rules. As the applicant noted, in R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194 at 212-213, Mason and Murphy JJ discussed the precursor of s 164, including s 164(4). ( I refer to their Honours' observations, without setting them out.) Section 164(4) provides for the Court to make interim orders "that it considers appropriate ...". Further, under s 164B(3) of Schedule 1, the Court, in considering an application under s 164 (or s 164A) , may, by an order, make a declaration that the whole or a part of the rules of the organisation contravene s 142 or that the rules of the organisation contravene that section in a particular respect: see Allen v Townsend [1977] FCA 10 ; (1977) 31 FLR 431 at 481.
Case: Allen v Townsend [1977] FCA 10 ; (1977) 31 FLR 431
Outcome: cited
applicant also relies on s 164 of Schedule 1, which permits a member of an organisation to apply for an order giving directions for the performance or observance of any of the rules of the organisation by any person who is under an obligation to perform or observe those rules. As the applicant noted, in R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194 at 212-213, Mason and Murphy JJ discussed the precursor of s 164, including s 164(4). ( I refer to their Honours' observations, without setting them out.) Section 164(4) provides for the Court to make interim orders "that it considers appropriate ...". Further, under s 164B(3) of Schedule 1, the Court, in considering an application under s 164 (or s 164A) , may, by an order, make a declaration that the whole or a part of the rules of the organisation contravene s 142 or that the rules of the organisation contravene that section in a particular respect: see Allen v Townsend [1977] FCA 10 ; (1977) 31 FLR 431 at 481. I am not persuaded that the applicant has made a sufficient showing that rule 62 does not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend. In this context, it seems to me that it must be borne in mind that rule 62(c) requires that notice of the proposed Special General Meeting be given to each shop steward, presumably so that such notice can be conveyed to the members. Rule 62(e) provides that, in such a case as this, the Meeting be held within 35 days of the receipt of the petition, and at a time and place determined by the Branch Committee. As counsel for Mr Jackson noted, the power to appoint a time and place must be exercised bona fide and for the purpose for which it was conferred in furtherance of the democratic participation of the members in the Meeting: compare Allen v Townsend 31 FLR at 483-488 and Scott v Jess (1984) 3 FCR 263 at 287.
Case: McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397
Outcome: referred to
parties did not dispute the nature of the test to be applied on an application for interim orders. In McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397 , at 402-403, Gray J discussed the test to be applied, saying: In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants' entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make "such interim orders as it considers appropriate". Parliament has not chosen to use the word "injunction". The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis. In Conquo v Jackson [2009] FCA 45 , at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction. Broadly speaking, on the present application, counsel approached the matter by examining the "serious question" issue and the "balance of convenience", noting at the same time that it was "the duty of the court to do justice as best it can".
Case: Conquo v Jackson [2009] FCA 45
Outcome: referred to
parties did not dispute the nature of the test to be applied on an application for interim orders. In McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397 , at 402-403, Gray J discussed the test to be applied, saying: In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants' entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make "such interim orders as it considers appropriate". Parliament has not chosen to use the word "injunction". The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis. In Conquo v Jackson [2009] FCA 45 , at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction. Broadly speaking, on the present application, counsel approached the matter by examining the "serious question" issue and the "balance of convenience", noting at the same time that it was "the duty of the court to do justice as best it can".