Atkinson v Commissioner of Taxation S287/2000

[2001] HCATrans 645

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S287 of 2000

B e t w e e n -

GEORGE ATKINSON

Applicant

and

COMMISSIONER OF TAXATION

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2001, AT 2.54 PM

Copyright in the High Court of Australia

MR G. ATKINSON appeared in person.

MR I.S. YOUNG:   May it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

HAYNE J:   Yes, Mr Atkinson.

MR ATKINSON:   Your Honours, it is a matter that should never have reached this far, it should have been decided in the court below.  It is quite a simple matter.  On 21 May 1998 the ATO garnisheed funds of mine of $157,035.43.  On 18 June 1998 I received a cheque back from the ATO, so consequently the ATO held $154,392.25 of mine.  The funds were from the sale of the family home following consent orders of 16 December 1997, of the Family Court.

The funds were my share of the divided assets as awarded and ratified by the Family Court.  The funds were not earned income.  Only income may be taxed and must be of a periodic character.  My funds were removed by a person or persons who were not members of the Australian Public Service but who were employed by a de facto organisation, self‑styled Australian Taxation Office.  The funds were removed on production of a letter written on an ATO letterhead on which there was no signature, only a stamped impression of a name stamped on the document.  The name was of David E. Butler.

On 5 October 2001 I served a statement of claim naming David E. Butler as a defendant.  These documents were accepted by a male person over the age of 21 who signed for the documents as Aysee Yasdin Parast.  The address of service was 100 Market Street, which is the office of the ATO.  Six weeks later I received these documents back.  The letter stated that Mr Butler was no longer with the ATO.

What worries me is the fact that personnel of an organisation that is not involved with the Australian Public Service, to go to my bank, garnishee my funds and overrule an order of a judge of the Family Court.  Justice Purdy of the Family Court awarded me approximately $300,000 which was from the sale of the family home.  My wife got the big bite of the cherry - she got nearly a million, or just close to a million – so nothing happened there, but this de facto organisation garnisheed my funds.

HAYNE J:   In order to meet amounts which they said you owed for tax, is that not right?

MR ATKINSON:   Yes, but I was not a taxpayer.  I had owned property in Switzerland which I sold and was living on the proceeds of the sale of my property in Switzerland.  So the personnel of this de facto organisation went to the Family Court and the documents in the Family Court stated that my ex‑wife and I needed approximately 60,000 a year for living expenses.  Those expenses were paid from capital and not from income.  I would understand that if Justice Purdy awarded me $300,000, that would be sacrosanct.  It was not earned income; it has nothing to do with this department, self‑styled Australian Taxation Office.  That is the easy row to hoe.

HAYNE J:   Is there anything else you wish to say?

MR ATKINSON:   No, I would leave it at that point at this point of time.

CALLINAN J:   You know that is your submission?  You do not have another opportunity.  The only further opportunity you have is in reply if we ask to hear the other side.  There is nothing else you want to put before us?

MR ATKINSON:   If I go down the other road, the other road to hoe is of course ‑ ‑ ‑

CALLINAN J:   We have read your papers, of course, the papers you have filed.

MR ATKINSON:   We will go back then and if the Australian Constitution is a flawed document, all the regulations that this other de facto organisation throw at me are nor worth a damn.

HAYNE J:   Mr Atkinson, we have read your papers.  Is there anything further you want to add?

MR ATKINSON:   Not at this stage, but I believe I have right of reply.

HAYNE J:   You say “Not at this stage”.  This is it.  Is there anything more you want to add?

MR ATKINSON:   I am not sure – are you Justice Callinan?

CALLINAN J:   Yes.

MR ATKINSON:   Well, your Honour, on 17 May 2000 at a hearing of the High Court in Brisbane, the ATO’s senior barrister, Mr Logan, Senior Counsel, was forced to agree when his Honour Justice Callinan stated in Court that the ATO was not a legal entity and did not appear in any legislation setting up a government body.

CALLINAN J:   No separate legal personality; that is what was said, I think, something to that effect.  You would have to read the whole of the context.

MR ATKINSON:   I have that.  I do not have it with me but I do have it.

CALLINAN J:   Anyway, I understand your point.  I know what you are saying.

MR ATKINSON: Then again of course, her Honour Patsy Wolfe, the Chief Justice of the District Court of Queensland, pronounced that the Australian Taxation Office has not been set up as a government department in accordance with the Constitution, assuming the Constitution is legal. Further, it has not been set up as an executive agency in accordance with the Public Service Act, was not a statutory authority, which are the only three possibilities under section 7 of the Public Service Act for a body to be part of the Australian Public Service.

CALLINAN J:   Yes, that is all in your written material.  We have read that, Mr Atkinson.

MR ATKINSON:   There are your comments, Justice Callinan:  “The current tax laws are so complex, they are tripped up honest taxpayers, and cost the business world a fortune in compliance costs.  The complexity of the system could even encourage people to dodge paying taxes.  Citizens affected by laws should be entitled to assess and to understand them with relatively difficulty.  Tricky tax laws also have meant that the government needed an army of bureaucrats to administer and enforce the taxation system”.

If we go back to the Constitution and the Constitution is not a valid document, the de facto organisation had no rights to take my money. My main argument is the fact that the money was not earned income.

HAYNE J:   We understand that is the point you want to make.

MR ATKINSON:   It was not an income, otherwise they would have gone to Mrs Atkinson and they would have taxed Mrs Atkinson on the million plus that she got, but they hit me.  Thank you, your Honours.

HAYNE J:   Thank you.  We need not trouble you, Mr Young.

An appeal against the several decisions of the Federal Court from which the applicant seeks special leave to appeal would not enjoy sufficient prospects of success to warrant a grant of special leave.

Special leave to appeal is accordingly refused with costs.

Adjourn the Court to 4 February 2002 in Canberra.

AT 3.03 PM THE MATTER WAS CONCLUDED