Canberra Cleaners Pty Ltd v Commissioner for Act Revenue

Case [2018] ACTSC 208


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue

Citation:

[2018] ACTSC 208

Hearing Dates:

11, 14 December 2017

Last Submissions Received:

7 March 2018

DecisionDate:

3 August 2018

Before:

McWilliam AsJ

Decision:

See [120]

Catchwords:

ADMINISTRATIVE LAW – TAXATION AND REVENUE – judicial review – whether garnishee notices issued to debtors of plaintiffs ought be set aside – whether director’s compliance notices invalid – where notices issued required total income of the businesses to be paid to the Commissioner for ACT Revenue – whether hardship a relevant consideration – whether decisions unreasonable – whether amount of unpaid tax liability stated to be payable on some notices was ambiguous, confusing, incorrect or uncertain – effect of previous declaration of invalidity – those notices ought be set aside

Legislation Cited:

Corporations Act (Cth) ss 181, 182

Income Tax Assessment Act 1936 (Cth) s 218
Payroll Tax Act 1987 (ACT) (repealed)
Payroll Tax Act 2011 (ACT)

Taxation Administration Act 1999 (ACT) ss 16, 50, 52, 54, 56B, 105, 134, pts 7, 10

Cases Cited:

Attorney-General v Carlton Bank [1899] 2 QB 158

Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393; 216 FCR 405
AWB Ltd v Cole (No 2) [2006] FCA 913; 253 FCR 288
Bellinz v Commissioner of Taxation (1998) 84 FCR 154
Bluebottle UK Ltd v Deputy Commissioner of Taxation [2007] HCA 54; 232 CLR 598
Bryant v Commonwealth Bank of Australia & Anor (1996) 134 ALR 460
Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue (No. 2) [2017] ACTSC 303; 325 FLR 419
Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue (No. 3) [2017] ACTSC 340
Clyne v Deputy Commissioner for Taxation (1981) 150 CLR 1
Clyne v Deputy Commissioner of Taxation (NSW) (No 3) (1983) 48 ALR 545
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Commissioner for Taxation v Futuris Corp Ltd [2008] HCA 32; 237 CLR 146
Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; 237 CLR 473
Deputy Commissioner of Taxationv TDE Nominees Pty Ltd (No 2) [2011] NSWSC 1528
Edelsten v Wilcox (1988) 83 ALR 99
Elias v Commissioner for Taxation [2002] FCA 845; 123 FCR 499
Elias v Commissioner of Taxation [2002] FCA 1132; 199 ALR 246
Federal Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; 191 FCR 400
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
Gashi v Commissioner of Taxation [2013] FCAFC 30; 209 FCR 301
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36; 235 CLR 125
Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32; 93 SASR 568
Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; 168 FCR 566
Kruger v The Commonwealth (1997) 190 CLR 1
Meagher v Stephenson (1993) 30…

Continue reading Canberra Cleaners Pty Ltd v Commissioner for Act Revenue

Sign in free to access the full text

Details
AGLC
Canberra Cleaners Pty Ltd v Commissioner for Act Revenue [2018] ACTSC 208
Case
[2018] ACTSC 208
Decision Date

CaseChat Overview and Summary

The case of Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue involved the plaintiffs, Canberra Cleaners Pty Ltd, contesting the validity of certain compliance notices and garnishee notices issued by the Commissioner for ACT Revenue. The plaintiffs sought to have these notices set aside, arguing they were unreasonable and ambiguous. The court was tasked with determining whether the garnishee notices requiring the debtors of the plaintiffs to pay the total income of the businesses to the Commissioner were valid, and whether the compliance notices issued to the directors of the plaintiffs were lawful and reasonable.

The legal issues before the court included whether the compliance notices were inconsistent with the Corporations Act, whether the Commissioner took into account irrelevant considerations or failed to take into account relevant ones in issuing the notices, and whether the notices were ambiguous or confusing regarding the amount of unpaid tax liability. Additionally, the court had to consider the effect of previous declarations of invalidity on the notices in question.

In its reasoning, the court found that the compliance notices were inconsistent with the Corporations Act, placing the directors in conflict with the interests of the companies. The court also determined that the notices were issued immediately after a court order suspending the operation of the garnishee notices, effectively subverting the earlier judicial review proceedings. The court held that the decisions to issue the notices were unreasonable and amounted to an improper exercise of power by the Commissioner. As a result, the garnishee notices and compliance notices were set aside.

The final orders of the court were to set aside the garnishee notices and compliance notices issued by the Commissioner for ACT Revenue to Canberra Cleaners Pty Ltd, finding them to be invalid and unreasonable.

Orders

Orders of the court

See [120]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The second complaint made is that the issuing of the compliance notices was inconsistent with a Commonwealth law, namely ss 181 or 182 of the Corporations Act (Cth) (the Corporations Act) (Issue 8). The essence of this complaint is that the director compliance notices put each director into a conflict with the interests of the companies of which they were directors, in that it was in the companies’ interests to remain a going concern in order to pursue the separate litigation disputing the underlying assessments, but once the director compliance notices were issued, it was in the Directors’ interests to wind up the companies so as to avoid becoming personally responsible for any debt owed by the group. The Directors characterise the decision to issue the compliance notices as either (a) exceeding the power of s 56B of the Act; (b) involving an error of law; or (c) an improper exercise of the power, through taking an irrelevant consideration into account, or failing to take a relevant consideration into account. The third ground of complaint is that the director compliance notices were issued immediately after the Court had made orders suspending the operation of the garnishee notices in proceedings SC 424 of 2017. The stay on the operation of the garnishee notices was expressly to preserve the ability of the plaintiffs in proceedings SC 424 of 2017 to pursue judicial review. Absent any stay, the effect of issuing the compliance notices was to force the Directors to commence winding up the companies and thus subverted the stay obtained in the earlier proceeding. The Directors characterise this conduct as taking into account an irrelevant consideration, or failing to take into account a relevant consideration, or as a decision so unreasonable that no reasonable decision-maker could have made it (Issue 9). The scheme for the recovery of taxation revenue from taxpayers is important to the construction of the provisions. Section 52 permits the Commissioner to agree to an arrangement for the payment of tax: The Commissioner may collect an outstanding tax amount from people other than the taxpayer. One of the empowering provisions applicable to this case is s 54, located in pt 7 of the Act, concerning the collection of tax. It is relevantly as follows (emphasis added): Several points are to be made from the emphasised words in this section. First, where the debtor who receives a garnishee notice is paying money to the taxpayer in instalments, s 54(4) of the Act permits the Commissioner to collect out of every instalment only a part of the total amount owed by the taxpayer. Otherwise, if the amount payable to the taxpayer by the receiver of the notice is less than the amount the taxpayer owes to the revenue, all the money is to be paid to the Commissioner in accordance with s 54(6) of the Act. That is, the Act expressly permits the Commissioner to divert and collect every cent that might become payable to the taxpayer by a debtor, in order to pay the tax debt.