BXCD and Commissioner of Taxation

[2017] AATA 1067

BXCD and Commissioner of Taxation [2017] AATA 1067 (28 June 2017)

Division:                  TAXATION & COMMERCIAL DIVISION

File Number(s):      2016/1597; 2016/2794

Re:BXCD

FIRST APPLICANT

NFGB

SECOND APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:28 June 2017

Place:Sydney

1.The application for proceedings numbers 2016/1597 and 2016/2794 to be heard concurrently is refused.

2.The matters are to be heard consecutively before the same presiding member on dates to be fixed.

.............................[sgd]...........................................

Deputy President Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – application for proceedings to be heard concurrently – consideration of the commonality of witnesses, evidence and issues – consideration of unfairness or prejudice to the parties – where savings in time and cost is uncertain – where application made for proceedings to be heard in private pursuant to section 14ZZE Taxation Administration Act 1953 (Cth) – application for concurrent hearing refused – matters to be heard consecutively before the same presiding member on dates to be fixed.

LEGISLATION

Taxation Administration Act 1953 (Cth), s 14ZZE

REASONS FOR DECISION

Deputy President Bernard J McCabe

28 June 2017

1. The applicant in these proceedings, known as BXCD, is a relative of the applicant in application No 2016/2794. That applicant is known as NFGB.

2. The Commissioner has made an application for both proceedings to be joined and heard together.  This is not the first time the Commissioner has made such an application in these proceedings: an earlier request was withdrawn, at least partly because the two proceedings were not at the same stage of readiness. But the Commissioner says that impediment has been removed because it now appears both applications for review are likely to be ready for hearing at about the same time. The applicants in both proceedings acknowledge that development but they remain opposed to joinder.

3. The Commissioner argues the proceedings raise similar or overlapping issues. He says in particular that both applicants were officers of the same companies (or most of the same companies) and that either or both may have received or benefitted from payments by the companies. There is a question mark in each case over whether the companies in question were carrying on bona fide businesses.

4. The Commissioner says a number of the witnesses to be called in each case would be common to both matters. There is also significant overlap in the documentary evidence. He denies there is any unfairness or prejudice to the applicants if they were required to participate in the same hearing.

5. The submissions filed by the applicants question whether the issues in both cases are sufficiently similar. Mr Clark of counsel argued in his written submissions that each applicant played different roles in the companies during different periods. He also pointed out the real issue in each case was not simply whether each applicant received company monies, but the taxable income of each applicant. Mr Clark points out each applicant may be related but they have different finances. I accept there may be some duplication if the proceedings are conducted separately, but it is not clear how much.

6. I note two other matters. Firstly, there has been some uncertainty as between the parties over the time that each was likely to take if they were heard separately, and the time that might be saved if the matters were heard together. It is difficult for me to reach a view on that issue in light of the disagreement between the parties. While I accept there may be economies if the matters were heard together, it is difficult to be confident of that occurring.

7. The other matter is the fact both applicants have requested that their respective proceedings be conducted in private pursuant to s 14ZZE of the Taxation Administration Act 1953. The applicants are entitled to private hearings, which includes privacy from each other. That privacy is likely to be illusory in circumstances where they are closely related and share the same legal representation, but it is a factor I must consider.

8. I think the best course in the circumstances is for both applications to proceed on consecutive days before the same presiding member. While that might result in some duplication of efforts as witnesses are potentially called twice, it seems likely the parties will be able to cooperate with the presiding member to manage the two sets of proceedings in a way that minimises the duplication while preserving the individual focus the applicants expect.

9. The application for the proceedings in each case to be joined together is refused.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

...............................[sgd].........................................

Associate

Dated: 28 June 2017

Date of hearing:	On the papers
Counsel for the Applicant:	Rob Clark
Solicitors for the Applicant:	Clamenz Lawyers
Counsel for the Respondent:	Angus Stewart SC & Tony O’Brien
Solicitors for the Respondent:	Australian Government Solicitor