Hudson v Commissioner of Taxation
[2016] SASCFC 122
•16 November 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HUDSON v COMMISSIONER OF TAXATION
[2016] SASCFC 122
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Lovell and The Honourable Justice Hinton)
16 November 2016
TAXES AND DUTIES - ADMINISTRATION OF FEDERAL TAX LEGISLATION - PENALTIES, OFFENCES AND PROSECUTIONS - PARTICULAR PENALTIES AND OFFENCES - FAILURE TO MAKE STATEMENT OR LODGE RETURN OR DOCUMENT - GENERALLY
Application for permission to appeal against conviction.
On 15 April 2016, the applicant was convicted in the Magistrates Court of nine counts of an offence against s 8C(1)(a) of the Taxation Administration Act (Cth). The applicant was guilty of the offence because he failed to provide a taxation return as requested by the Commissioner of Taxation and issued pursuant to s 162 of the Income Tax Assessment Act 1936 (Cth).
The applicant appealed the convictions entered by the Magistrate to a single Judge of this Court. The applicant appealed on the grounds that: the Magistrate has misstated the grounds of the offence; and, that the Commissioner’s requirement that the applicant produce taxation returns was unlawful because it contained a reference to the applicant’s taxation file number (TFN) where the applicant had requested it not do so. On 2 September 2016, that appeal was dismissed.
The applicant applies for permission to appeal on grounds that, in dismissing the appeal, his Honour: did not take into account or consider that the Magistrate failed to agree to evidentiary material being delivered; failed to properly identify the elements of the offence; erred at law in relying on the averments to the charges set out by the Complainant; erred in holding there was evidence of a requirement made of the defendant under s 162 of the Income Taxation Assessment Act; erred in law and fact; and, erred in not setting aside the orders of the learned magistrate.
Held (per the Court):
1. Permission to appeal refused.
Taxation Administration Act 1953 s 8C(1)(a); Income Tax Assessment Act 1936 s 162, referred to.
Hudson v Commissioner of Taxation [2016] SASC 145, applied.
Cassaniti v DPP (Cth) [2008] NSWDC 2, discussed.
HUDSON v COMMISSIONER OF TAXATION
[2016] SASCFC 122Full Court: Kourakis CJ, Lovell and Hinton JJ
THE COURT: On 15 April 2016, the applicant, David Joseph Hudson, was convicted in the Magistrates Court of nine counts of an offence against s 8C(1)(a) of the Taxation Administration Act 1953 (Cth) (the TAA), in that he failed to provide a taxation return requested by the Commissioner of Taxation (the Commissioner) issued pursuant to s 162 of the Income Tax Assessment Act 1936 (Cth) (the ITA) for the financial years ending 30 June 2003 to 30 June 2011 inclusive. There was no dispute that the notices requesting the applicant to file a return were issued with respect to each year and no dispute that the applicant had failed to file a taxation return in accordance with the notices. There was no evidence that the Commission had revoked or modified the terms of the notices.
The applicant appealed the convictions. His appeal was heard by a Judge of this Court on 26 July 2016 and dismissed on 2 September 2016.
Broadly, the grounds of appeal pursued by the applicant were:
1the Magistrate had misstated the elements of the offence; and
2the requirement of the Commissioner to provide taxation returns was in some way unlawful because the notice included a reference to the applicant’s tax file number (TFN) which was invalidly issued or unlawfully used despite demands made by the applicant that the Commissioner desist from doing so.
The first contention raises a question of law as to whether there were two, three or four elements of the offence. The deconstruction of an offence into its constituent elements is a practical matter, about which different views can be reasonably taken. The Judge’s analysis was:[1]
Bearing in mind the observations of Hodgson JA and by having regard to the text of section 8C(1)(a), whilst I do not disagree with the Magistrate’s formulation of the elements, a more precise form is that set out by Nicholson DCJ in Cassaniti v DPP (Cth)[2] to the following effect (paraphrasing):
(a)the defendant was required, pursuant to a taxation law, to give an approved form to the Commissioner by a specified time; and
(b)the defendant refused or failed to comply with the requirement.
There is no reason to think that the Judge’s analysis was wrong.
[1] Hudson v Commissioner of Taxation [2016] SASC 145 at [13].
[2] [2008] NSWDC 2 at [47].
More importantly, the Judge was plainly correct in holding that howsoever the constituent elements of an offence against s 8C of the TAA might be broken down, the undisputed evidence in this case proved the commission of each of the charged offences.
On the question of the use of the TFN, the Judge was plainly correct in finding that any dispute about the validity or lawfulness of the continuing use of the TFN was irrelevant because each of the notices, as a matter of fact, made a request pursuant to s 162 of the ITA, irrespective of the status of the TFN recorded on them. As to the various other grounds advanced, the Judge was right to observe that they were completely without merit.
The applicant seeks permission to appeal against the order of the Judge dismissing his appeal on the following grounds:
Grounds of appeal
1.That his Honour failed to take into account or to properly consider that the learned Magistrate below failed to agree to evidentiary material being delivered pursuant to the Witness Summons of the defendant below and returnable prior to 2 April 2014.
2. That his Honour failed to properly identify the elements of the offence as charged.
3.That his Honour erred at law in relying on the averments to the charges as set out by the Complainant.
4.That his Honour erred in holding there was evidence of a requirement made of the defendant under s 162 Income Tax Assessment Act 1936 as alleged in the charges.
5.That his Honour erred in law and in fact.
6.That his Honour erred in not setting aside the orders of the learned Magistrate.
The subpoena referred to in the first ground sought the Commissioner produce:
1.Any letter, memorandum or other document which authorizes the Commonwealth Director of Public Prosecutions or any of his employees to do any of the following:-
a) record the tax file number […] of the Defendant (David Joseph Hudson of […] or maintain such a record; or
b) use the tax file number […] of the defendant (David Joseph Hudson of […] in a manner connecting it with the identity of the defendant, David Joseph Hudson of […], or
c) divulge or communicate the tax file number […] of the Defendant (David Joseph Hudson of […] to a third person.
It will be seen that the subpoena sought material on the irrelevant dispute concerning the validity and/or continued use of the TFN appearing on the notices. There is no merit in this ground of appeal.
As to ground 2, as already observed, there is no reason to think that the identification of the elements by the Judge was wrong and his Honour’s ultimate conclusion that the offences were proved was plainly correct.
Over and above the averments, there was undisputed evidence that proved the provision of the notices and the failure to comply. There was no evidence of inability to comply. Grounds 3 and 4 are therefore without merit.
Grounds 5 and 6 are dependent on establishing the earlier grounds.
Permission to appeal should be refused.
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