Borcherdt v Commissioner of Taxation

The respondents in Borcherdt v Commissioner of Taxation were Mr Borcherdt and his business partner, Mr Glen Scott, who conducted a sawmilling business in northern New South Wales. The Commissioner of Taxation disallowed the applicants' claims for diesel fuel credits and diesel tax credits in respect of fuel sourced from Action Fuels, a company that supplied fuel to the applicants. The applicants sought review of the Commissioner's decision by the Administrative Appeals Tribunal. The Tribunal affirmed the Commissioner's decision and dismissed the applicants' review application. The applicants appealed to the Federal Court of Australia.

The applicants argued that the Tribunal failed to take into account the Commissioner's obligation to act as a model litigant, relevant considerations, and the standard of proof applicable to civil litigation. The applicants also argued that the Tribunal took into account considerations it was bound not to take into account and erred in the application of administrative penalties.

The court held that the Tribunal was not required to take into account the Commissioner's obligation to act as a model litigant. The court also held that the Tribunal did not fail to take into account relevant considerations, as the Tribunal's reasons addressed the relevant issues. The court held that the Tribunal did not adopt the approach and standards applicable to civil litigation and that the Tribunal was not required to consider evidence on a standard other than the balance of probabilities. The court held that the Tribunal did not err in the application of administrative penalties.

The court dismissed the applicants' appeal and remitted the matter to the respondent to allow a claim for $11,105.30, in accordance with the respondent’s concession before the Administrative Appeals Tribunal. The application was otherwise dismissed.