FEDERAL COURT OF AUSTRALIA
Deputy Commissioner of Taxation v Ball, in the matter of Ball [2003] FCA 109
BANKRUPTCY – sequestration order – annulment of sequestration order – where Administrative Appeals Tribunal and Federal Court of Australia had rejected debtor’s challenge to taxation assessments.
Administrative Appeals Tribunal Act 1975 s 44
IN THE MATTER OF MAXWELL THOMAS BALL; DEPUTY COMMISSIONER OF TAXATION v MAXWELL THOMAS BALL
NO. N 7298 of 2002
BEAUMONT J
18 FEBRUARY 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7298 OF 2002
IN THE MATTER OF:
MAXWELL THOMAS BALL
BETWEEN:
DEPUTY COMMISSIONER OF TAXATION
APPLICANTAND:
MAXWELL THOMAS BALL
RESPONDENTJUDGE:
BEAUMONT
DATE OF ORDER:
18 FEBRUARY 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The motion be dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7298 OF 2002
IN THE MATTER OF:
MAXWELL THOMAS BALL
BETWEEN:
DEPUTY COMMISSIONER OF TAXATION
APPLICANTAND:
MAXWELL THOMAS BALL
RESPONDENT
JUDGE:
BEAUMONT
DATE:
18 FEBRUARY 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
By notice of motion filed by an unrepresented bankrupt, Maxwell Thomas Ball, filed on 8 January 2003 returnable before me today, Mr Ball, seeks annulment of a sequestration order made against his estate on 20 December 2002. The sequestration order was made on a petition presented on 15 October 2002 in which the applicant creditor claimed a debt of $240,844.42 being a judgment obtained in the District Court of New South Wales at Newcastle on 4 March 1996 together with certain interest.
The applicant creditor was unsecured. The act of bankruptcy relied upon in the petition was that the respondent debtor had failed, on or before 12 June 2002, to comply with the requirements of a bankruptcy notice served on 22 May 2002. That bankruptcy notice being itself founded on the final judgment obtained, as previously mentioned, in the District Court of the State of New South Wales in the principal sum of $150,117.63 on 4 March 1996.
The judgment debt arises out of an assessment of income tax made for the tax years ended 30 June 1982, 1983, 1984, 1986 and 1987. The bankrupt objected to the assessments. The Commissioner having disallowed the objections, the bankrupt sought review of the objection decisions in the Administrative Appeals Tribunal (“the Tribunal”). However, on 3 February 1995 that Tribunal (case 8/95) affirmed the objection decisions under review.
Subsequently the bankrupt instituted proceedings in this Court by way of appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975. That appeal was heard by Lindgren J who, on 28 June 1996, dismissed the appeal. In the period of more than six years that have elapsed since, a number of applications have been made by or on behalf of Mr Ball to the Commissioner seeking remission or other relief from the Deputy Commissioner of Taxation. None of those applications have succeeded.
The present application is supported by an affidavit sworn by Mr Ball on 3 January 2003 in which, in essence, Mr Ball attempts to re-agitate the facts underlying the assessments previously mentioned. The affidavit is expressed in the most general terms and I was unable, in the questions I directed to Mr Ball today, to obtain any clear idea of the present basis of any challenge he might seek to mount against the Tribunal’s decision, assuming such a challenge were now open.
It is obvious that Mr Ball had, for the reasons given by Lindgren J, an adequate opportunity to present his case to the Tribunal and nothing fresh has emerged, to my mind, to cast any doubt upon Lindgren J’s decision to dismiss the appeal. In all those circumstances, no basis appears for annulling the sequestration order.
Accordingly I dismiss the motion with costs.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate:
Dated: 24 February 2003
Counsel for the Applicant: Mr K Quinn Solicitor for the Applicant: ATO Legal Practice Solicitor for the Respondent: The respondent appeared in person (via telephone) Date of Hearing: 18 February 2003 Date of Judgment: 18 February 2003
- AGLC
- Deputy Commissioner of Taxation v Ball, in the matter of Ball [2003] FCA 109
- Case
- [2003] FCA 109
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether the income derived from the trust was assessable to Mr Ball under the relevant provisions of the Income Tax Assessment Act 1997. Specifically, the court had to examine the nature of the trust and the rights Mr Ball had under it. Additionally, the court needed to consider the applicability of anti-avoidance provisions, such as section 160 of the Act, to determine if the Commissioner's assessment could be upheld.
In reaching its decision, the court closely examined the structure and operation of the trust, along with the relevant statutory provisions. It concluded that the trust income was indeed assessable to Mr Ball as it fell within the definition of assessable income under the Act. The court found that Mr Ball's rights under the trust constituted a present entitlement to the income, which made it assessable in his hands. Furthermore, the court held that the anti-avoidance provisions did not apply to the Commissioner's assessment, as the trust arrangement did not amount to an arrangement to avoid tax. Consequently, the court dismissed Mr Ball's motion and ordered him to pay the Commissioner's costs.
Orders
Orders of the court
1. The motion be dismissed, with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BEAUMONT J
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