Deputy Commissioner of Taxation v Johnson

[2004] SADC 157

District Court of South Australia

(Civil)

DEPUTY COMMISSIONER OF TAXATION v JOHNSON

Judgment of His Honour Judge Clayton (ex tempore)

8 November 2004

INCOME TAX - COLLECTION AND RECOVERY OF TAX

HELD:  Incorrect tax file number does not invalidate a Notice of Assessment.

Taxpayer held liable on basis of copy Notice of Assessment certified by a Deputy Commissioner of Taxation and evidentiary certificates bearing the stamped signature of a Deputy Commissioner.

Judgment for plaintiff for $152,517.68.

Income Tax Assessment Act 1996 ss 176, 177, 204(3); Taxation Administration Act 1957 s 255-45; Taxation Administration Regulations 1976 reg 45, referred to.
Commissioner of Taxation v Prestige Motors Pty Ltd (1994) 181 CLR 1 at 14, considered.

DEPUTY COMMISSIONER OF TAXATION v JOHNSON
[2004] SADC 157

1. In this matter Ms Johnson disputed that the Notice of Assessment, dated 29 October 2002, was a notice which related to her.

2. She claimed that the tax file number on the notice, namely 318 654 604, was incorrect. (When I refused to rule on that point until I had heard the plaintiff’s case, Ms Johnson announced that she proposed to appeal and left the courtroom. The plaintiff continued to present its case in her absence)

3. Mr Sallis, who appeared for the Deputy Commissioner, told me that the number shown on the Notice of Assessment is incorrect. In fact, the correct tax file number for Mrs Johnson is 318 854 604.

4. I am satisfied that Mrs Johnson was served with a copy of the Notice of Assessment. That is made clear by the exhibit “EJ1” to her affidavit of 4 April 2003.

5. I am satisfied that the insertion of an incorrect tax file number does not invalidate a Notice of Assessment. In that regard I have been referred to the decision of the High Court of Australia in the Commissioner of Taxation v Prestige Motors Pty Ltd[1], in particular at page 14 per Mason CJ, Brennan, Deane, Gaudron and McHugh JJ.

   [1] (1994) 181 CLR 1

6. With respect to the calculation of the debt, I have been referred to section 204 sub-section (3) of the Income Tax Assessment Act 1996, sections 176 and 177 of the Income Tax Assessment Act 1996, and regulation 45 of the Taxation Administration Regulations 1976 which provides that a certificate bearing the stamped name of a Deputy Commissioner of Taxation is taken to be duly signed by the person.

7. I am satisfied that a copy Notice of Assessment which is certified by Erin Holland, a Deputy Commissioner of Taxation, is a certified copy of the Notice of Assessment for the year ended 30 June 1998, which issued on 29 October 2002 in respect of Ms Johnson.

8. I have also been referred to section 255-45 of the Taxation Administration Act 1957 with respect to evidentiary certificates and the weight to be given to them, as well as other statutory provisions which I need not detail.

9. I accept that the evidentiary certificates bearing the stamped signature of Erin Holland, a Deputy Commissioner of Taxation, which have been tendered and have become Exhibits P3 and P4 are evidence of the defendant’s tax related liability.

10. Also section 177 sub-section (1) of the Income Tax Assessment Act 1996 provides that the production of a Notice of Assessment, or of a document under the hand of a Deputy Commissioner purporting to be a copy of a Notice of Assessment, shall be conclusive evidence of the due making of the assessment and that the amount and all the particulars of the assessment are correct.

11. I am satisfied that as at 21 June 2004, the sum of $152,517.68 was a debt due and payable by the defendant, Mrs Eileen May Johnson, to the Commonwealth in respect of the year of income ended 30 June 2001, that amount comprising the amounts which are shown in the sub-paragraphs of the certificate.

12. In the circumstances there will be judgment in favour of the plaintiff against the defendant in the sum of $152,517.68. That amount is calculated as at 21 June 2004.

13. The defendant is also liable to pay the general interest charge which has accrued since 21 June 2004 and the plaintiff will, of course, be entitled to take further steps to recover the continuing general interest charge.

14. I also order that the defendant pay the plaintiff’s costs of this action to be taxed.