Celeste Corporation Pty Ltd v Deputy Commissioner of Taxation

[2010] WASC 183

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CELESTE CORPORATION PTY LTD -v- DEPUTY COMMISSIONER OF TAXATION [2010] WASC 183

CORAM:   ACTING MASTER CHAPMAN

HEARD:   1 JULY 2010

DELIVERED          :   26 JULY 2010

FILE NO/S:   COR 16 of 2010

BETWEEN:   CELESTE CORPORATION PTY LTD

Plaintiff

AND

DEPUTY COMMISSIONER OF TAXATION
Defendant

Catchwords:

Corporation - Application to set aside a statutory demand - Turns on own facts

Legislation:

Corporation Act 2001 (Cth)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Taxation Administration Act (Cth)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr G K Paull

Defendant:     Mr L A Tsaknis

Solicitors:

Plaintiff:     Butcher Paull & Calder

Defendant:     Australian Taxation Office

Case(s) referred to in judgment(s):

Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473

1. ACTING MASTER CHAPMAN:  On 4 February 2010 the plaintiff filed an originating process seeking an order that the defendant's statutory demand dated 15 January 2010 be set aside.  The basis of the application is a dispute as to the Running Balance Account deficit debt and the Superannuation Guarantee Charge Debt claimed in the demand. 

2. Pursuant to s 459H(1)(a) of the Corporation Act 2001 (Cth) a statutory demand may be set aside if it is established there is a genuine dispute about the existence or amount of the debt claimed in the statutory demand.  The debt claimed under the Running Balance Account has now been paid and thus no longer remains a debt due and payable to the defendant. 

3. On or about 24 August 2005 pursuant to s 36 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (the Act) the defendant issued default assessments to the plaintiff in accordance with s 40 and s 62 of the Act. The plaintiff objected to the default assessments and the objection was partly allowed with a result that amended assessments were issued. The defendant assessed, as at 15 January 2010, that a sum of $581,488.08 was the total Superannuation Guarantee Charge Debt. On 19 March 2010 the defendant issued a certificate under s 255-45 in sch 1 to the Taxation Administration Act 1953 (Cth) (the certificate). Counsel for the defendant submits that the sum of $581,488.08 remains due and payable to the defendant.

4. Section 75 of the Act reads:

   Evidence

   (1)The mere production of:

   (a)a notice of assessment; or

   (b)a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of a notice of assessment;

   is conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amounts and all of the particulars of the assessment are correct.

   (2)A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of a document issued or given by the Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie evidence that the second‑mentioned document was so issued or given.

   (3)A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of, or an extract from, a superannuation guarantee statement or a notice of assessment is evidence of the matter set out in the document to the same extent as the original statement or notice, as the case may be, would be if it were produced.

   (4)A certificate signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that a sum specified in the certificate was, on the day of the certificate, payable by a person in relation to an amount of superannuation guarantee charge or by way of penalty under section 49 or Part 7, is prima facie evidence of the matters stated in the certificate.

   (5)A superannuation guarantee statement purporting to be made or signed by or on behalf of an employer is prima facie evidence that the statement was made by the employer or with the employer's authority.

5. In Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473 [57] the court said:

   Nothing turns upon the attribution to a s 459G application of the character of a proceeding in which, as Keane JA said, a tax debt may be disputed by the applicant taxpayer.  Section 459G applications by taxpayers are not Pt IVC proceedings and production by the Commissioner of the notices of assessment and of the GST declarations conclusively demonstrates that the amounts and particulars in the assessments and declarations are correct.  That being so, the operation of the provisions in the taxation laws creating the debts and providing for their recovery by the Commissioner cannot be sidestepped in an application by a taxpayer under s 459G of the Corporations Act to set aside a statutory demand by the Commissioner (footnotes omitted).

6. With respect I agree.  Counsel for the plaintiff referred me to a number of cases which in the main predate Deputy Commissioner of Taxation v Broadbeach Properties.  In the case before me assessments were issued to which the plaintiff objected and was partially successful.  Amendments to the assessments were issued.  The assessments are, in my view, conclusive evidence of the debt due and it is not open to the plaintiff to contend there is a genuine dispute about the amounts so assessed.  The certificate is prima facie evidence of the matters stated in the certificate and I am not persuaded on the evidence before me that that presumption is dislodged.  Accordingly I am not persuaded there is a genuine dispute about the amount claimed. 

7. I agree with the submission of counsel for the defendant that the plaintiff cannot overcome the absence of a genuine dispute by attempting to categorise the dispute as an off‑setting claim for the purposes of s 459H of the Corporations Act.  Given the assessment and the certificate the plaintiff would not be able to challenge the amount outstanding other than by the methods provided for in that Act. 

8. The plaintiff argues there is a defect in the demand which will cause a substantial injustice if the statutory demand is not set aside:  see s 459J of the Corporations Act.  The submission is based upon the contention the defendant has not taken into account certain payments the plaintiff made to ING Superannuation and the employment status the plaintiff had with its van drivers.  I accept the plaintiff and the defendant take a different view about how these matters should be dealt with but I am not satisfied this amounts to a defect in the demand.  If the plaintiff wants to challenge the stance the defendant has taken there are avenues for it to do so, but this is not one of them.

9. The plaintiff further submits that the conduct of the defendant, in not taking into account the payments made to ING Superannuation, is unconscionable and an abuse of process which will give rise to a substantial injustice and on that basis the statutory demand should be set aside.  Given the provisions of the Act I am not persuaded the discretion conferred by s 459J(1)(b) of the Corporations Act would be open, but even if it were I am not persuaded on what is before me the conduct of the defendant fell into a category which would justify the setting aside of the statutory demand.

10. Accordingly I would not set aside the statutory demand but will consider amending it to take into account the payments made in relation to the Running Balance Account should that be necessary.