Deputy Commissioner of Taxation v Nercessian

The Deputy Commissioner of Taxation (the Commissioner) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the validity of notices issued under section 222AOF of the *Income Tax Assessment Act 1936* (Cth). The dispute centred on whether these notices were validly "given" to the taxpayer, Mr. Nercessian, given the method by which the Commissioner obtained his address.

The primary legal issue before the Court of Appeal was whether the notices were validly given pursuant to section 222AOF of the *Income Tax Assessment Act 1936* (Cth). This required the Court to determine the meaning of "ASIC document" as defined in section 222AOF(2) and whether the Commissioner's search of ASIC's public database, MASCOT, to extract the taxpayer's address, satisfied the requirements of the section, notwithstanding that the Commissioner had not searched the original return or notice from which that address was purportedly extracted. The Court also considered observations on alternative modes of service pursuant to sections 28A and 29 of the *Acts Interpretation Act 1901* (Cth).

The Court of Appeal found that the Commissioner's reliance on a search of ASIC's public database, MASCOT, did not constitute a search of an "ASIC document" for the purposes of section 222AOF(2). The Court reasoned that an "ASIC document" within the meaning of the provision referred to a document lodged with ASIC, not merely information extracted from a public database that may have been derived from such a document. Consequently, the notices were not validly given under section 222AOF. The appeal was allowed with costs, and the orders of the primary judge were set aside.