mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370
Outcome: cited
I note that the directors' penalty imposed under the ITAA can be characterised as a debt admissible to proof in bankruptcy. See eg Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370 at [16] - [17] and Forsyth v Deputy Federal Commissioner of Taxation [2007] HCA 8 at [16] .
Case: Forsyth v Deputy Federal Commissioner of Taxation [2007] HCA 8
Outcome: cited
I note that the directors' penalty imposed under the ITAA can be characterised as a debt admissible to proof in bankruptcy. See eg Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370 at [16] - [17] and Forsyth v Deputy Federal Commissioner of Taxation [2007] HCA 8 at [16] .
Case: Emu Bay Railway Co Ltd v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596
Outcome: distinguished
With the SBC loans there was not a condition precedent to the coming into existence of the liability, as was the case in Emu Bay Railway Co Ltd v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596. The loan agreements, under which money was advanced, stipulated dates for repayment and created unconditional obligations, notwithstanding that such obligations were extended from time to time: cf Federal Commissioner of Taxation v Citylink Melbourne Limited (2006) 228 CLR 1 at [134]. Prior to the sale of share agreement, there was no suggestion that SBC's rights would be abandoned.
Case: Federal Commissioner of Taxation v Citylink Melbourne Limited (2006) 228 CLR 1
Outcome: cited
With the SBC loans there was not a condition precedent to the coming into existence of the liability, as was the case in Emu Bay Railway Co Ltd v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596. The loan agreements, under which money was advanced, stipulated dates for repayment and created unconditional obligations, notwithstanding that such obligations were extended from time to time: cf Federal Commissioner of Taxation v Citylink Melbourne Limited (2006) 228 CLR 1 at [134]. Prior to the sale of share agreement, there was no suggestion that SBC's rights would be abandoned.
Case: Spassked v Federal Commissioner of Taxation [2003] FCAFC 282 ; (2003) 136 FCR 441
Outcome: cited
The applicant relied on Spassked v Federal Commissioner of Taxation [2003] FCAFC 282 ; (2003) 136 FCR 441 at [128] where Gyles J said that the parent-subsidiary relationship in that case was such that the loans were "purely intra-group arrangements with no external aspect" and many of the companies involved had "no external role at all". Thus the requisite connection or relationship between the outgoing and the earning of assessable income "was not to be inferred but must be positively established". However, in the present case SBAF certainly had an external role. It was a trading entity in its own right, albeit an unsuccessful one, and used the borrowed funds for working capital to pay the expenses of its business.
Case: GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124
Outcome: cited
The relevant taxpayer is the applicant. The focus is upon it and the use to which it put the borrowed funds. The Court is not concerned with SBC's purpose in advancing funds: GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 136-137. 43 I conclude the answer to Issue 2 is: yes. 44 Section 245 - 35 (1) provides that a debt is forgiven if the debtor's obligation to pay the debt "is released or waived, or is otherwise extinguished".
Case: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305
Outcome: cited
In my opinion, the words of s 245-35(1) cannot be read down so as to require some express forgiveness. Waiver, for example, may be by conduct; it is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305 at 326, Grundt v Great Boulder Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641 at 658. The expression "or otherwise extinguished" is wide and would cover an agreement, enforceable in equity, not to set up the cause of action in debt: McDermott v Black [1940] HCA 4 ; (1940) 63 CLR 161. SBAF was of course a party to the sale of shares agreement. After settlement of the sale of shares agreement and SBC's receipt of the purchase price from Tasman Group there is no way in which SBC could have recovered the debts previously owing by SBAF.
Case: Grundt v Great Boulder Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641
Outcome: cited
In my opinion, the words of s 245-35(1) cannot be read down so as to require some express forgiveness. Waiver, for example, may be by conduct; it is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305 at 326, Grundt v Great Boulder Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641 at 658. The expression "or otherwise extinguished" is wide and would cover an agreement, enforceable in equity, not to set up the cause of action in debt: McDermott v Black [1940] HCA 4 ; (1940) 63 CLR 161. SBAF was of course a party to the sale of shares agreement. After settlement of the sale of shares agreement and SBC's receipt of the purchase price from Tasman Group there is no way in which SBC could have recovered the debts previously owing by SBAF.
Case: McDermott v Black [1940] HCA 4 ; (1940) 63 CLR 161
Outcome: cited
In my opinion, the words of s 245-35(1) cannot be read down so as to require some express forgiveness. Waiver, for example, may be by conduct; it is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305 at 326, Grundt v Great Boulder Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641 at 658. The expression "or otherwise extinguished" is wide and would cover an agreement, enforceable in equity, not to set up the cause of action in debt: McDermott v Black [1940] HCA 4 ; (1940) 63 CLR 161. SBAF was of course a party to the sale of shares agreement. After settlement of the sale of shares agreement and SBC's receipt of the purchase price from Tasman Group there is no way in which SBC could have recovered the debts previously owing by SBAF.
Case: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666
Outcome: cited
Mr Meredith, correctly in my view, identified the debtor's capacity to pay as a function of the resources which would be available, including assets which the debtor could realise in a reasonable time frame, and taking into account other liabilities. This approach is consistent with the classic definition of solvency in Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 670. 67 I would therefore not accept Mr Hodgkinson's going concern basis. 68 Mr Hodgkinson argued that a creditor valuing a debt in its own hands on a going concern basis will apply any payment against its oldest debt first. Therefore, he said, on Mr Meredith's figures, totalling SBC advances outstanding prior to each new advance meant that the distribution would be insufficient to repay any further advance after 31 January 1997.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: followed
As has been repeatedly pointed out, judicial review of an administrative decision -- let alone judicial review confined to jurisdictional error -- does not extend to a review of the merits of a decision: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. These observations have been oft cited with approval: eg, Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137] , [2004] HCA 32 ; 197 CLR 510 at 560 per Gummow and Hayne JJ.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
As has been repeatedly pointed out, judicial review of an administrative decision -- let alone judicial review confined to jurisdictional error -- does not extend to a review of the merits of a decision: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. These observations have been oft cited with approval: eg, Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137] , [2004] HCA 32 ; 197 CLR 510 at 560 per Gummow and Hayne JJ.
Case: SZJLH v Minister for Immigration &amp; Citizenship [2007] FMCA 2067
Outcome: cited
On that occasion there was no appearance by either of the now Appellants and the application was dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth): SZJLH v Minister for Immigration &amp; Citizenship [2007] FMCA 2067. 24 Any continuing significance as to the events of 28 November 2007, however, remains elusive. As set forth in the reasons for decision of the Federal Magistrates Court now under appeal, an application was made on 12 February 2008 to vacate the orders previously made and, on that occasion, the Federal Magistrate in fact vacated the orders as requested and proceeded to hear and resolve the case then sought to be advanced. 25 There is no procedural unfairness in either the Federal Magistrate initially dismissing the application in November 2007, when the now Appellants failed to appear, and certainly no procedural unfairness in the Federal Magistrate thereafter, in February 2008, entertaining and resolving the arguments that were subsequently sought to be advanced. Whatever may have been the reasons for the now Appellants not previously appearing before the Federal Magistrates Court, they need not be further pursued; their case has been heard and determined by that Court in a procedurally fair manner.
Case: SZJLH v Minister for Immigration &amp; Citizenship [2008] FMCA 175
Outcome: cited
The Federal Magistrates Court ultimately dismissed an application seeking to review the decision of the Tribunal: SZJLH v Minister for Immigration &amp; Citizenship [2008] FMCA 175. 5 The Appellants now appeal to this Court from that decision. The Grounds of Appeal as set forth in the Notice of Appeal (without alteration) provide as follows: His Hon. Federal Magistartae Raphel FM failed to hold that the Refugee Review Tribunal made a jurisdictional error when it misunderstood or misconstrued the term "religious belief" as it appears in the UN Refugee Convention . The RRT failed to appreciate that appellant suffered harm at the hands of Muslims opponents only because of his religious belief being a Hindu . The Tribunal did not understand the applicant's fear of harm and misaaplied the law-affected the Tribunal's application of law. The appellants claim that the Tribunal failed to assess the cumulative effects of separate incidents of attacks on the appellant related with his claim for the protection visa. The Appellants claim that they have fear of persecution . 2.The appellants were denied procedural fairness when Hon Federal Magistrate failed to consider that appellants did not attend the scheduled hearing on 28 November 2007 due to financial hardship . They were unable to pay airfare and train fare because of financial hardship . They could not inform the Court because the network in that countryside was not working . Hon. Federal Magistrate did not give any consideration to waive the Respondent's cost of $4500. Notwithstanding the numbering appearing in those grounds, it is considered that the Notice of Appeal raises three grounds. 6 There was, however, no appearance for the Appellants when the matter was called on for hearing at 2.20 pm this afternoon. The matter was then called outside the Court, but to no avail. The proceedings were stood down to 2.35 pm to accommodate the prospect that the Appellants may have been late in arriving. The matter was then called outside the Court but again to no avail. The interpreter who attended Court to assist the Appellants was requested to telephone the Appellants on the mobile phone number set forth in their Notice of Appeal . That number was dialled, but the mobile telephone was turned off. 7 Counsel for the First Respondent sought an order that the appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). 8 Previously filed by the Appellants was a written Outline of Submissions which has been considered, as have the Respondent Minister's written submissions.
Case: Clark v Commissioner of Taxation [2007] FCA 1426
Outcome: referred to
The applicant seeks to sidestep these problems by relying upon the Commissioner's appeal statement required by O 52B r 5 of the Federal Court Rules . It is submitted that, on the basis that all the facts asserted in the appeal statement are accepted, the applicant can demonstrate that it will carry the burden of proof of establishing that the declaration should not have been made. The applicant relies upon the decision of Sundberg J in Rio Tinto Ltd v Federal Commission of Taxation [2004] FCA 335 ; (2004) 55 ATR 321 particularly at [31] and [58] that underlines the importance of the appeal statement and the necessity for it to fully state the basis of the relevant decision, and refers to Clark v Commissioner of Taxation [2007] FCA 1426 at [37] . It is submitted for the Commissioner that an appeal statement should not be used in this way.
Case: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416
Outcome: cited
The Commissioner submits that the application is misconceived. In order to succeed the Court must be satisfied that the Commissioner has no reasonable prospect of successfully defending the proceeding (s 31A(1)(b) Federal Court of Australia Act 1976 (Cth)), although a defence need not be hopeless or bound to fail for it to have no reasonable prospect of success (s 31A(3)). It is clear enough that s 31A is wider than the previous regime for summary judgment had become. Counsel cited a number of decisions that have discussed this provision the latest being Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] per Jacobson J and Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] per Tamberlin J. However, limited assistance is to be gained from other decisions. "No reasonable prospect of successfully defending the proceeding" is a statutory phrase that does not permit or require paraphrase. Whilst the bar may be lower than it was, it still requires a considerable leap.
Case: Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399
Outcome: cited
The applicant submits that it is quite clear that it did not get a "GST benefit" from any scheme that has been or might be identified. An entity only gets a GST benefit if the amount of GST payable by it is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme (s 165-10(1)(a)). That requires adopting a hypothesis as to what would have occurred had the scheme not been entered into. It is submitted that the hypothesis must be reasonable and based upon the evidence ( Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 385; Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399 at 412). It is submitted for the applicant that no such hypothesis has been or could be adopted here.
Case: Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359
Outcome: cited
The applicant submits that it is quite clear that it did not get a "GST benefit" from any scheme that has been or might be identified. An entity only gets a GST benefit if the amount of GST payable by it is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme (s 165-10(1)(a)). That requires adopting a hypothesis as to what would have occurred had the scheme not been entered into. It is submitted that the hypothesis must be reasonable and based upon the evidence ( Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 385; Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399 at 412). It is submitted for the applicant that no such hypothesis has been or could be adopted here.
Case: Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39
Outcome: followed
In my opinion, the authorities cited by counsel for the Commissioner, namely Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 at 45 per Isaacs J, Puzey v Commissioner of Taxation [2003] FCAFC 197 ; (2003) 131 FCR 244 and Platypus Leasing Inc v Commissioner of Taxation (No 3) [2005] NSWSC 388 ; (2005) 189 FLR 441 at [47] [51], upheld on appeal at (2005) 61 ATR 239, establish the correctness of the Commissioner's contentions.
Case: Federal Commissioner of Taxation v Sun Alliance Investments Pty Ltd (in liq) [2005] HCA 70 ; (2005) 225 CLR 488
Outcome: cited
The applicant contends, as a separate point, that if the applicant received a GST benefit, that benefit was attributable to the making by Holdings of a choice, election or application that is expressly provided for by the GST Act and so Div 165 does not operate by reason of s 165-5(1)(b). Registration for GST purposes is governed by Pt 2-5 of the GST Act. It is submitted that application for cancellation of registration in the approved form was a choice, election or application expressly provided for by s 25-55(1)(a). Reference was made to the decision of the High Court in Federal Commissioner of Taxation v Sun Alliance Investments Pty Ltd (in liq) [2005] HCA 70 ; (2005) 225 CLR 488 at 514 515 and to the decision of Greenwood J in Walters v Commissioner of Taxation (2007) 162 FCR 421 particularly at [83] [85].
Case: Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574
Outcome: cited
The Commissioner submits that the application is misconceived. In order to succeed the Court must be satisfied that the Commissioner has no reasonable prospect of successfully defending the proceeding (s 31A(1)(b) Federal Court of Australia Act 1976 (Cth)), although a defence need not be hopeless or bound to fail for it to have no reasonable prospect of success (s 31A(3)). It is clear enough that s 31A is wider than the previous regime for summary judgment had become. Counsel cited a number of decisions that have discussed this provision the latest being Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] per Jacobson J and Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] per Tamberlin J. However, limited assistance is to be gained from other decisions. "No reasonable prospect of successfully defending the proceeding" is a statutory phrase that does not permit or require paraphrase. Whilst the bar may be lower than it was, it still requires a considerable leap.
Case: Platypus Leasing Inc v Commissioner of Taxation (No 3) [2005] NSWSC 388 ; (2005) 189 FLR 441
Outcome: applied
In my opinion, the authorities cited by counsel for the Commissioner, namely Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 at 45 per Isaacs J, Puzey v Commissioner of Taxation [2003] FCAFC 197 ; (2003) 131 FCR 244 and Platypus Leasing Inc v Commissioner of Taxation (No 3) [2005] NSWSC 388 ; (2005) 189 FLR 441 at [47] [51], upheld on appeal at (2005) 61 ATR 239, establish the correctness of the Commissioner's contentions.
Case: Platypus Leasing Inc v Commissioner of Taxation (2005) 61 ATR 239
Outcome: applied
In my opinion, the authorities cited by counsel for the Commissioner, namely Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 at 45 per Isaacs J, Puzey v Commissioner of Taxation [2003] FCAFC 197 ; (2003) 131 FCR 244 and Platypus Leasing Inc v Commissioner of Taxation (No 3) [2005] NSWSC 388 ; (2005) 189 FLR 441 at [47] [51], upheld on appeal at (2005) 61 ATR 239, establish the correctness of the Commissioner's contentions.
Case: Puzey v Commissioner of Taxation [2003] FCAFC 197 ; (2003) 131 FCR 244
Outcome: applied
In my opinion, the authorities cited by counsel for the Commissioner, namely Federal Commissioner of Taxation v S Hoffnung &amp; Co Ltd [1928] HCA 46 ; (1928) 42 CLR 39 at 45 per Isaacs J, Puzey v Commissioner of Taxation [2003] FCAFC 197 ; (2003) 131 FCR 244 and Platypus Leasing Inc v Commissioner of Taxation (No 3) [2005] NSWSC 388 ; (2005) 189 FLR 441 at [47] [51], upheld on appeal at (2005) 61 ATR 239, establish the correctness of the Commissioner's contentions.
Case: Rio Tinto Ltd v Federal Commission of Taxation [2004] FCA 335 ; (2004) 55 ATR 321
Outcome: referred to
The applicant seeks to sidestep these problems by relying upon the Commissioner's appeal statement required by O 52B r 5 of the Federal Court Rules . It is submitted that, on the basis that all the facts asserted in the appeal statement are accepted, the applicant can demonstrate that it will carry the burden of proof of establishing that the declaration should not have been made. The applicant relies upon the decision of Sundberg J in Rio Tinto Ltd v Federal Commission of Taxation [2004] FCA 335 ; (2004) 55 ATR 321 particularly at [31] and [58] that underlines the importance of the appeal statement and the necessity for it to fully state the basis of the relevant decision, and refers to Clark v Commissioner of Taxation [2007] FCA 1426 at [37] . It is submitted for the Commissioner that an appeal statement should not be used in this way.
Case: Walters v Commissioner of Taxation (2007) 162 FCR 421
Outcome: cited
The applicant contends, as a separate point, that if the applicant received a GST benefit, that benefit was attributable to the making by Holdings of a choice, election or application that is expressly provided for by the GST Act and so Div 165 does not operate by reason of s 165-5(1)(b). Registration for GST purposes is governed by Pt 2-5 of the GST Act. It is submitted that application for cancellation of registration in the approved form was a choice, election or application expressly provided for by s 25-55(1)(a). Reference was made to the decision of the High Court in Federal Commissioner of Taxation v Sun Alliance Investments Pty Ltd (in liq) [2005] HCA 70 ; (2005) 225 CLR 488 at 514 515 and to the decision of Greenwood J in Walters v Commissioner of Taxation (2007) 162 FCR 421 particularly at [83] [85].