Deputy Commissioner of Taxation v Hooper - [2005] VSC 69

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5544 of 2002

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA	Plaintiff
v
ANTHONY EDWARD HOOPER	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2005
DATE OF JUDGMENT:	21 March 2005
CASE MAY BE CITED AS:	Deputy Commissioner of Taxation v Hooper
MEDIUM NEUTRAL CITATION:	[2005] VSC 69

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Income tax – Proceeding to recover income tax, additional tax, interest and charges for late payment of income tax and provisional tax – Notices of assessment – Conclusive evidence - Certificates constituting prima facie evidence of additional tax, interest and charges – Summary judgment – Whether arguable defence in relation to additional tax, interest and charges – Income Tax Assessment Act 1936 (Cth) s 177 – Taxation Assessment Act 1953 (Cth) s 8AAZJ, s 255-45.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P G Sest	ATO Legal Services Branch
For the Defendant	Mr R E Cook	S V Winter & Co

HIS HONOUR:

In this proceeding the plaintiff claims from the defendant taxpayer $330,933.37 as the aggregate of two claims, namely $315,667.62 as the amount owing in respect of income tax, provisional tax and additional charges for late payment, and $15,265.75 as the amount owing under a “Running Balance Account” (“RBA”) in respect of primary tax debts under the Business Activity Statement (“BAS”) provisions. They were the amounts owing as at 8 December 2004 when the Listing Master commenced to hear an application by the plaintiff under O 22 for summary judgment in the proceeding. The hearing was resumed and concluded on 17 December 2004 when the Listing Master ordered that the plaintiff have leave to further amend its statement of claim in the form that had been produced to her, and that the defendant pay the plaintiff $330,933.37 and the costs of the proceeding.

Pursuant to a notice of appeal filed on 21 December 2004, the defendant now appeals against the allowance of the amendment and the orders for summary judgment and costs.

The further amended statement of claim is in two parts. In the first part it is alleged that the defendant was assessed to income tax for the years of income ended 30 June 1993 to 2000 inclusive, and that notices of assessment in respect of those years were served on the defendant on or about the issue dates of the notices. It is then alleged that the defendant was required to pay provisional tax in respect of the above years of income and that notices of provisional tax in respect of those years were served upon the defendant on or about the issue dates of the notices. It is alleged that the defendant failed to pay income tax and provisional tax in respect of those years on or before the relevant due dates. As a result the defendant became liable to pay, in respect of both income tax and provisional tax, additional tax by way of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deputy Commissioner of Taxation v Hooper

Details

AGLC: Deputy Commissioner of Taxation v Hooper [2005] VSC 69
Case: [2005] VSC 69
Decision Date: 21 March 2005

CaseChat Overview and Summary

The case of Deputy Commissioner of Taxation v Hooper involves a proceeding to recover income tax, additional tax, interest, and charges for late payment of income tax and provisional tax by the Deputy Commissioner of Taxation against the taxpayer, Hooper. The dispute came before the Federal Circuit Court of Australia. The core issue in this case was whether the certificates issued by the Commissioner constituted prima facie evidence of additional tax, interest, and charges under the relevant sections of the Taxation Assessment Act 1953, and if there was an arguable defence against these claims. The court had to consider the interplay between the conclusive evidence provisions in the Income Tax Assessment Act 1936 and the prima facie evidence provisions in the Taxation Assessment Act 1953.

The court examined whether the certificates issued by the Commissioner were sufficient to establish the additional tax, interest, and charges as prima facie evidence, as provided for in section 8AAZJ of the Taxation Assessment Act 1953. The court also needed to determine if there was an arguable defence against these claims under section 177 of the Income Tax Assessment Act 1936. The court found that the certificates were valid and constituted prima facie evidence of the additional tax, interest, and charges. Furthermore, the court held that there was no arguable defence that could counter the conclusive effect of the certificates, as the provisions of the Taxation Assessment Act 1953 provided a clear legal basis for the claims.

In light of these findings, the court granted summary judgment in favour of the Deputy Commissioner of Taxation. The court ruled that the certificates issued by the Commissioner were valid and that there was no basis to dispute the additional tax, interest, and charges. The court ordered Hooper to pay the amounts claimed by the Deputy Commissioner of Taxation, along with interest and other costs as determined by the court. This decision reinforces the legal position that certificates issued under the Taxation Assessment Act 1953 carry significant weight in tax disputes and that they can effectively preclude the taxpayer from contesting the additional tax, interest, and charges without a valid defence.

Orders