Guss v ATO - [2017] VSC 396

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST

S CI 2016 4593

JOSEPH GUSS	Appellant
v
EDDIE STORACE (AUSTRALIAN TAXATION OFFICE)	Respondent

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2017
DATE OF JUDGMENT:	26 June 2017
CASE MAY BE CITED AS:	Guss v ATO
MEDIUM NEUTRAL CITATION:	[2017] VSC 396

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APPEAL – Leave to appeal from Magistrates’ Court of Victoria – Final Notice issued by the Commissioner of Taxation – Income Tax Assessment Act 1936, s 162 – Taxation Administration Act 1953, s 8C(1)(a), s 8ZL – Income Tax Regulations 1936, Regs 36, 37A and 40 – Acts Interpretation Act 1901 (Cth), s 29 – Criminal Procedure Act 2008 (Vic), s 272 – Interpretation of Legislation Act 1984 (Vic), s 49 – Evidence Act 2008 (Vic), s 160.

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APPEARANCES:	Solicitors
For the Appellant	Mr J Guss appeared in person
For the Respondent	Ms R Sharp of Counsel	Director of Public Prosecutions (Cth)

HIS HONOUR:

Introduction

By Notice of Appeal dated 10 November 2016 Joseph Guss (the appellant) appeals the decision of Magistrate McLean in proceeding No. E11966467 of 20 October 2016. The appellant, in this appeal, relies upon his:

(a) Notice of Appeal dated 10 November 2016;

(b) two affidavits sworn 10 November 2016 and 13 February 2017 and their accompanying exhibits;

(c) written submissions dated 28 March 2017 and oral submissions made 26 June 2017.

The respondent relies upon:

(a) the affidavit of Eddie Storace affirmed 20 December 2016 and accompanying exhibits;

(b) written submissions dated 11 April 2017 and oral submissions made 26 June 2017.

Background

By Final Notice dated 5 March 2014 (Final Notice) issued by the Commissioner of Taxation (the Commissioner) under s 162 of the Income Tax Assessment Act 1936 (the ITAA), the appellant was required to give the Commissioner income tax returns in the approved form on or before 16 April 2014, for the years 1 July 2009 to 30 June 2010, 1 July 2010 to 30 June 2011, 1 July 2011 to 30 June 2012 and 1 July 2012 to 30 June 2013.

The Commissioner’s Final Notice was addressed to Joseph Guss, PO Box 454 Collins Street West Vic 8007.

Failure to provide the income tax returns required by the Final Notice is an offence under s 8C(1)(a) of the Taxation Administration Act 1953 (the TAA). That offence is in the nature of a criminal offence.

On behalf of the Commissioner, Mr Storace of the Australian Taxation Office (the respondent) issued four charges (one in respect of each required income tax return) as specified in the Charge Sheet and Summons dated 5 June 2014, averring pursuant to s 8ZL of the TAA that, inter alia, the Final Notice was duly served on the appellant by posting it on 5 March 2014 by pre-paid letter to the appellant’s address for service, namely PO Box 454 Collins Street West VIC 8007. The same…

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 Guss v ATO

Details

AGLC: Guss v ATO [2017] VSC 396
Case: [2017] VSC 396
Decision Date: 26 June 2017

CaseChat Overview and Summary

The appellant, Guss, sought leave to appeal a decision of the Magistrates’ Court of Victoria concerning a final notice issued by the Commissioner of Taxation. The dispute centred around the validity and legality of the final notice issued under the Income Tax Assessment Act 1936, specifically in relation to sections 162, 8C(1)(a), and 8ZL, as well as certain regulations under the Income Tax Regulations 1936. The Taxation Administration Act 1953 and the Acts Interpretation Act 1901 were also relevant to the case, as well as provisions from the Criminal Procedure Act 2008 (Vic) and the Interpretation of Legislation Act 1984 (Vic). The Evidence Act 2008 (Vic) was cited in the context of the admissibility of evidence.

The primary legal issues revolved around the interpretation of the statutory provisions governing the issuance of final notices by the Commissioner of Taxation and the procedural fairness in the context of issuing such notices. The court had to determine whether the final notice complied with the requisite legal standards and whether the procedural steps taken by the Commissioner adhered to the statutory requirements. Additionally, the court examined the scope of judicial review available in such matters and the extent to which the Magistrates' Court could scrutinise the administrative actions of the Commissioner.

In its reasoning, the court considered the statutory framework and the relevant case law, focusing on the principles of statutory interpretation and the scope of judicial review in administrative law. The court found that the final notice issued by the Commissioner of Taxation complied with the statutory requirements and was procedurally fair. The court emphasised that the Magistrates' Court should exercise restraint in reviewing the administrative decisions of the Commissioner, unless there was clear evidence of procedural irregularity or error of law. The appeal was dismissed, as the court held that the statutory provisions and the administrative process were correctly applied.

The final orders of the court were that the appeal was dismissed with costs. The decision underscored the deference owed to the administrative decisions of the Commissioner of Taxation, unless there was a clear breach of statutory provisions or procedural unfairness. The court's ruling reinforced the principle that judicial intervention in administrative processes should be limited, except in cases of clear legal or procedural error.

Orders