Hudson v Commissioner of Taxation
[2016] SASC 145
•2 September 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HUDSON v COMMISSIONER OF TAXATION
[2016] SASC 145
Judgment of The Honourable Justice Nicholson
2 September 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
Appeal against conviction. On 18 March 2013, the appellant was charged with 9 counts of an offence pursuant to section 162 of the Income Tax Assessment Act 1936 (Cth). It was alleged that the appellant had failed to lodge, as required, income tax returns for the years ending 30 June 2003 to 30 June 2011 inclusive. The appellant was provided with a Final Notice on 15 November 2012 in which it was communicated to the appellant that he was required to furnish the income tax returns referred to in the notice. On 9 March 2016, the Magistrate found that the offences had been proved and, on 15 April 2016, the appellant was convicted of the nine offences as charged.
Whether the Magistrate properly identified the elements of the offence and properly applied section 8C of the Taxation Administration Act 1953 (Cth) – Whether the Magistrate erred in finding that Commissioner of Taxation had properly delegated his power to institute proceedings – Whether the Magistrate erred in finding the prosecution had met the required burden of proof – Whether the Final Notice provided to the appellant was invalid as the appellant had informed the Commissioner that he had withdrawn authorisation for the Commissioner to use the appellant’s Tax File Number (TFN).
Held:
1. Appeal dismissed.
Income Tax Assessment Act 1936 (Cth) s 162; Taxation Administration Act 1953 (Cth) s 2, s 8C, s 8WB, s 8ZL; Criminal Code 1995 (Cth) s 6.2, s 13.3; Income Tax Assessment Act 1997 (Cth) s 995.1; Magistrates Court Act 1991 (SA) s 42, referred to.
R v Whittaker [2015] QCA 116, applied.
Regina v Bates [2007] NSWCCA 297, discussed.
Cassaniti v DPP (Cth) [2008] NSWDC 2; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Theophilus v Police [2011] SASC 135, (2011) 110 SASR 420; Ambrose v Edmonds-Wilson (1988) 48 SASR 514; Whittaker v The Queen [2016] HCASL 21, considered.
HUDSON v COMMISSIONER OF TAXATION
[2016] SASC 145Magistrates Appeal: Criminal
NICHOLSON J.
Introduction
On 15 April 2016, David Joseph Hudson was convicted in the Magistrates Court of nine counts of an offence charged pursuant to section 162 of the Income Tax Assessment Act 1936 (Cth) in that, as alleged, he failed to give to the Commissioner of Taxation, as required by the Commissioner, an approved form contrary to section 8C(1)(a) of the Taxation Administration Act 1953 (Cth). By notice of appeal, received at the Supreme Court Registry on 6 May 2016, Mr Hudson has appealed against those convictions.
In essence, the nine charges relate to failures by the appellant to lodge, as required, income tax returns for the financial years ending 30 June 2003 to 30 June 2011 inclusive. It was conceded by the appellant that he had not filed income tax returns for those years. However, he raised a number of contentions both before the Magistrate and before this Court on appeal to the effect that notwithstanding such failures, it has not been proved that he committed the offences as charged or any offence.
The appellant was charged on a complaint and summons filed in the Magistrates Court on 18 March 2013. Each of the nine charges is in identical terms apart from the fact that a different taxation year is identified for each count. Count 1 is in the following terms.[1]
[1] The original form of the Complaint and Summons, as filed, alleged in the first and second line of each count that “the defendant failed to furnish an approved form ...”. However, each count was amended by consent on 22 May 2014 to replace the word “furnish” with the word “give”. This was done in order to bring the form of the charge into line, at least in part, with the wording of section 8C(1)(a) of the Taxation Administration Act 1953 as it stood at the time the charges were laid.
1.On or about 11 January 2013 at Millswood in South Australia the defendant failed to give an approved form to the Commissioner of Taxation when and as required pursuant to a taxation law, namely section 162 of the Income Tax Assessment Act 1936 contrary to paragraph 8C(1)(a) of the Taxation Administration Act 1953 and it is averred, pursuant to section 8ZL of the Taxation Administration Act 1953, that:-
(i) the defendant was required by the Deputy Commissioner of Taxation, Tax Practitioner & Lodgement Strategy, by notice in writing dated 15 November 2012 to give to the Commissioner of Taxation on or before 10 January 2013 an income tax return in the approved form duly signed setting forth a complete statement of all income derived by the defendant from all sources in Australia and elsewhere during the year 1 July 2002 to 30 June 2003 (“the notice”);
(ii) at all material times the Commissioner of Taxation had delegated his powers and functions to approve in writing the form for an income tax return for the year 1 July 2002 to 30 June 2003 to the Deputy Commissioner of Taxation, Personal Tax Program and this delegation has not at any material time been revoked;
(iii) at all material times the Deputy Commissioner of Taxation, Personal Tax Program had approved in writing the form for an income tax return for the year 1 July 2002 to 30 June 2003;
(iv) at all material times the Commissioner of Taxation had delegated his powers and functions in respect of the issue and contents of the notice to Deputy Commissioner of Taxation, Tax Practitioner & Lodgement Strategy and this delegation was not at any material time revoked;
(v) the notice was duly served on the defendant by posting it on 15 November 2012 by pre-paid letter post to the defendant’s address for service namely, [appellant’s full residential address is set out];
(vi) the defendant failed to furnish a return in compliance with the notice;
(vii) the period of time provided by the notice to furnish the return was reasonable.
Section 162 of the Income Tax Assessment Act 1936 is in the following terms.
162 Further returns and information
A person must, if required by the Commissioner, whether before or after the end of the year of income, give the Commissioner, within the time required and in the approved form:
(a)a return or a further or fuller return for a year of income or a specified period, whether or not the person has given the Commissioner a return for the same period; or
(b)any information, statement or document about the person’s financial affairs.
Section 8C of the Taxation Administration Act 1953 in its present form, being the form relied on by the respondent when framing and endeavouring to prove the charges, provides as follows.
(1)A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:
(a)to give any information or document to the Commissioner or another person; or
(aa)-(i) [not presently relevant]
commits an offence.
(1A)An offence under subsection (1) is an offence of absolute liability.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(1B)Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.
(2)For the purposes of paragraphs (1)(a) and (d), a person shall not be taken to have refused or failed to furnish information to the Commissioner or another person, or to notify the Commissioner or another person of a matter or thing, merely because the person has refused or failed to quote the person's tax file number to the Commissioner or other person.
The references to “absolute liability” in subsection 8C(1A) and “evidential burden” in subsection 8C(1B) engage, respectively, sections 6.2 and 13.3 of the Criminal Code.[2]
[2] Being the Schedule to the Criminal Code Act 1995 (Cth).
6.2 Absolute liability
(1)If a law that creates an offence provides that the offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.
(2)If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3)The existence of absolute liability does not make any other defence unavailable.
It is not contended that the appellant was not capable of complying with the requirement imposed by the respondent pursuant to paragraph (a) of section 8C(1). Accordingly, there is no need to give consideration to section 8C(1B) or section 13.3 of the Criminal Code.
For each of the nine counts as charged, the Complaint and Summons sets out in paragraphs (i)-(vii) a number of averments, that is, statements by the respondent of the facts or circumstances which the respondent intends to prove so as to make out the charge in question. The averments are in identical terms with respect to each charge apart from the particular financial year referred to. In each case, the averments have been included “pursuant to section 8ZL of the Taxation Administration Act 1953. Section 8ZL of the Taxation Administration Act 1953 provides as follows.
(1) In a prosecution for a prescribed taxation offence, a statement or averment contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred.
(2) This section applies in relation to any matter so stated or averred although:
(a) evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or
(b) the matter averred is a mixed question of law and fact, but, in that case, the statement or averment is prima facie evidence of the fact only.
(3) Any evidence given in support or rebuttal of a matter so stated or averred shall be considered on its merits, and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
(4) This section:
(a) does not apply to any fault element of an offence; and
(aa) does not apply in relation to any offence for which imprisonment is a penalty; and
(b) does not lessen or affect any onus of proof otherwise falling on a defendant.
The offences with which the appellant was charged are “prescribed taxation offences” for the purpose of section 8ZL.[3]
[3] See the definitions of “prescribed taxation offence” and “taxation offence” in section 8A of the Taxation Administration Act 1953. There was no election by the respondent pursuant to either section 8F(1) or 8S(1) to treat the offences charged otherwise than as prescribed taxation offence.
The prosecution case
The legal position on which the respondent relies can be summarised in the following three propositions.
(i)Section 162 of the Income Tax Assessment Act 1936 imposes a requirement on a person, if required by the Commissioner of Taxation, to give to the Commissioner, within the time required and in the approved form, a taxation return for a nominated year of income.
(ii)Section 162 falls within the definition of a “taxation law” for the purposes of section 8C(1)(a) of the Taxation Administration Act 1953.[4]
(iii)Pursuant to section 8C(1)(a) a person who fails, when and as required under or pursuant to section 162 (being a taxation law) to give to the Commissioner a taxation return, in the approved form within the time required, commits an offence.
In my view, propositions (i) to (iii) are sound.
[4] See section 995.1 of the Income Tax Assessment Act 1997 and section 2 of the Taxation Administration Act 1953.
The factual basis of the respondent’s case can be reduced to the following two propositions.
(i)By document headed “Final notice to lodge income tax returns” dated 15 November 2012 (the “Final notice”), Cheryl-Lea Field, Deputy Commissioner of Taxation and as delegate of the Commissioner of Taxation, required the appellant, under section 162 of the Income Tax Assessment Act 1936, “to furnish to the Commissioner of Taxation the income tax returns [for nine nominated financial years, ending 30 June 2003 to 30 June 2011 respectively] by 10 January 2013” (averments (1) to (v)).
(ii)The appellant failed to comply with the requirements set out in the Final notice.
As to proposition (ii) it is common ground that taxation returns for the nominated financial years were not furnished by the appellant by 10 January 2013 nor were they furnished as at the time of trial.[5]
[5] Commonwealth v Hudson, Judgment of Magistrate O’Connor, 9 March 2016, AMC-13-4466 (“Magistrate’s Reasons”) at [9].
The elements of the offence charged
The Magistrate identified the elements of each charged offence in the following terms.[6]
·that a valid requirement exists or is created under or pursuant to a taxation law to give any information or document to the Commissioner of Taxation; and
·that the defendant was required pursuant to a taxation law, to give an approved form to the Commissioner of Taxation (the Commissioner) by a specified time; and
·that the defendant refused or failed to comply with the requirement.
Her Honour found each of these elements proved to her satisfaction beyond reasonable doubt.
[6] Magistrate’s Reasons at [6].
Counsel for the appellant contends that her Honour misstated the elements of the offence. Counsel in his written summary of argument submitted that “it is usually accepted that there are four elements in an offence under section 8C(1)(a)”, citing Regina v Bates.[7] According to counsel, the “usually accepted” elements are:
(a)that the ATO had issued a final notice requiring the defendant to lodge a relevant income tax return;
(b)that the final notice was sent to the defendant normally at his address for service;
(c)that the defendant failed to comply with the requirements of the final notice; and
(d)that the defendant was capable of complying with the elements of the final notice.
Counsel further submitted that element (a) includes a validly issued final notice “with authority to use the TFN [that is, the appellant’s tax file number]”. No authority for the second aspect of this proposition was cited.
[7] [2007] NSWCCA 297 at [12].
The New South Wales Court of Criminal Appeal decision in Bates is not authority for the proposition that the offence in question is comprised of elements (a) to (d) above. These four elements were recorded and adopted by the District Court Judge in the judgment under appeal, as noted by Hodgson JA (with whose reasons Hislop and Latham JJ agreed) in Bates.[8] Indeed, although Hodgson JA did not expressly decide the question, it would appear that his Honour did not share the view that the elements of the offence under section 8C(1)(a) of the Taxation Administration Act 1953, bearing in mind the obligation imposed by section 162 of the Income Tax Assessment Act 1936, are comprised of (a) to (d) above. His Honour observed as follows.[9]
The relevant provisions (s 162 of the 1936 Act and s 8C of the 1953 Act) do not in terms require compliance with the terms of a written notice, and there is no section in the relevant legislation giving conclusive effect to such a notice. Each of the sections poses a question of fact as to what is required by the Commissioner; and although a notice given by the Commissioner is very powerful evidence of what is required by the Commissioner, it is not necessarily conclusive. Thus, for example, if there were a practice of suspending the requirements of the notice upon receipt of a request of an extension of time, and then either reinstating them if the extension is refused a reasonable time before the date specified in the notice, or otherwise substituting a different time, it would be arguable that, in the light of this practice, once a request had been made, what was required by the Commissioner was no longer as set out in the notice.
[8] Regina v Bates [2007] NSWCCA 297 at [12].
[9] Regina v Bates [2007] NSWCCA 297 at [19] (emphasis in original).
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)[10] 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.
[10] [2008] NSWDC 2 at [47].
The Magistrate’s Reasons
The evidence before the Magistrate was, essentially, documentary and by way of affidavits all of which was admitted by consent. One witness was called by the respondent to give oral evidence, Ms Angela Bennett who held a position with Lodgement Compliance, a section within the Australian Taxation Office. She was cross-examined. However, her evidence, which was largely formal, was not effectively challenged nor was her credit or reliability impugned. The Magistrate accepted her evidence.
The appellant adduced no evidence during the trial. However, after the Magistrate reserved her decision on 30 October 2014 and before judgment was delivered, the appellant sought permission to re-open the defence case in order to lodge and read an affidavit which was allowed. The affidavit, sworn by the appellant on 15 December 2015, exhibited correspondence, generated by the appellant before the Magistrate proceedings had commenced, directed to the Commissioner of Taxation. The burden of the correspondence was a demand that the taxation office cease using a tax file number previously issued to the appellant and purporting to withdraw any extant authority or consent for the tax file number to be used in connection with the appellant’s identity.
It is unnecessary to set out the Magistrate’s Reasons in any detail. The appellant raised a number of defences largely concerning questions of statutory construction and whether or not the elements of the offence, as charged, had been established by the evidence before the Magistrate. The Magistrate examined the evidence before her with care, rejected all of the defence contentions and found each of the offences proved to her satisfaction beyond reasonable doubt.
On appeal, counsel for the appellant criticized a number of aspects of her Honour’s reasons, including, by way of example only, that her Honour misstated the elements of the offence and that her Honour misapplied relevant legislative provisions.
It is not necessary that I form a concluded view on whether or not her Honour’s reasons are error free unless any identified error has resulted in a miscarriage of justice. Counsel on appeal submitted to the effect that were I to find her Honour to have erred, such as, for example, by applying the evidence to an incorrect statement of the elements of the offence, I should, in any event, set aside the convictions and remit the matter for re-hearing in the Magistrates Court.
I reject this submission. The matter fell to be determined by the Magistrate on the basis of the unchallenged evidence of Ms Bennett and the unchallenged documentary and affidavit evidence relied on by the prosecution. No issues concerning the credit or reliability of any witness arose.
An appeal against conviction in the Magistrates Court arises under section 42 of the Magistrates Court Act 1991 and is an appeal by way of re-hearing. The Court hearing the appeal is required to conduct a real and independent review of the evidence put before the Magistrate and come to its own conclusions.[11] On issues which involve an assessment of the credibility and reliability of a witness, the Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given.[12] However, such considerations do not arise in this case.
[11] For example, Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [38]-[39].
[12] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29].
I am in as good a position as was the Magistrate to review the documentary evidence produced at trial, to make findings of fact including the drawing of inferences and to determine questions of law. I am in a position to substitute my own decision if I were to come to a conclusion different from that of the Magistrate, after reviewing all of the evidence that was before the Magistrate. Further, I would be entitled to dismiss the appeal if I were to be satisfied that the appellant was properly convicted on the evidence before the Magistrate even if I were to adopt a reasoning process different to that of the Magistrate provided that there has been no miscarriage of justice in the way the trial was conducted.[13]
[13] See generally Theophilus v Police [2011] SASC 135; (2011) 110 SASR 420 at [48]-[57] (Peek J).
The Magistrate correctly observed that the offences charged were ones of absolute liability[14] with no fault element and the defence of mistake of fact was not available.[15]
[14] Section 8C(1A) of the Taxation Administration Act 1953.
[15] Section 6.2(2)(b) of the Criminal Code, Ambrose v Edmonds-Wilson (1988) 48 SASR 514 at 519.
The appellant admitted receiving and not complying with the Final notice, P1. As Hodgson JA in Bates observed,[16] this, of itself, is not conclusive as to the commission of the offence in question. The offence, as charged, does not require compliance with the terms of a written notice per se. The relevant issue of fact to be established is “what is required by the Commissioner”. However, in the present case, unlike in Bates, there is no suggestion that the Commissioner, or anyone authorised on his behalf, qualified the requirements as expressed in the “Final notice”, P1. Unlike as in Bates, there was no suggestion that the circumstances were such as might cause a suspension of the time for compliance or of any other requirement of the Final notice. The Final notice directed to the appellant remained, at all times, unqualified.
[16] Regina v Bates [2007] NSWCCA 297 at [19].
The unchallenged evidence before the Magistrate supported the conclusion that the appellant had been required by the Commissioner, pursuant to a taxation law, to furnish in the approved form the nominated taxation returns. Nothing in the evidence before the Magistrate served to rebut those facts averred in (i) to (v) of each of the charged offences such that the averments, thereby, retained their status as prima facie evidence of the factual matters asserted in accordance with section 8ZL of the Taxation Administration Act 1953. Indeed, the unchallenged affidavit evidence supported findings in terms of those facts averred in (i) to (v).
As already mentioned, it is not contested that the appellant failed to comply with the terms of the Final notice, P1. Further, there is no evidence and there has been no suggestion that the time provided in P1 for compliance was not reasonable.
On my consideration of the evidence, the Magistrate was correct to find the elements of each offence to have been established beyond reasonable doubt. To the extent that there may have been some misunderstanding or lack of clarity, during the trial, as to the precise form of the elements, I am satisfied that the appellant was fully aware of the case he was required to answer and suffered no prejudice. It has not been suggested otherwise. The burden of the appellant’s defence was not as to the nature or elements of the charge he was facing but by way of technical objections to the validity of the Final notice, P1, and to the quality of the respondent’s proofs, as is evident from the grounds of appeal.
Grounds of appeal
The appellant’s notice of appeal raises the following 17 grounds.
1.There is a reasonable apprehension of bias and or actual bias in that much of the wording used in the judgment is identical to or repeated from wording used in paragraphs 15-20 and 22-26 of the CDPP submissions.
2.Alternatively, that Her Honour denied the defendant natural justice in plagiarizing paragraphs 15-20 and 22-26 of the CDPP submissions in her judgment.
3.There is a reasonable apprehension of bias and or actual bias in that the Magistrate then refused to recuse herself.
4.That Her Honour failed to properly identify the elements of the offence in question.
5.That Her Honour exercised her discretion unreasonably in paragraph 16 in finding that a Tax File Number (TFN) was validly issued to the defendant.
6.That Her Honour exercised her discretion unreasonably in paragraph 19 in finding that the use of the defendant’s TFN in the issuance of the Final Notice pursuant to s 162 ITAA involved a use, by a person exercising a power or performing function under, or in relation to, a taxation law.
7.Alternatively, that her Honour erred in law in finding that the use of the use of the defendant’s TFN in the issuance of the Final Notice pursuant to s 162 of the Income Tax Assessment Act 1936 involved a use, by a person exercising a power or performing function under, or in relation to, a taxation law.
8.That her Honour erred at law in finding that the defendant’s assertion that he terminated the Commissioner’s authorisation to use his TFN, is not supported by any evidence before the Court.
9.Alternatively, that her Honour denied the defendant procedural fairness in not giving full opportunity to him to put such evidence before the Court.
10.That her Honour erred at law in finding that the defendant has no power or ability at law to direct the Commissioner not to use or disclose his TFN.
11.That her Honour erred at law in finding that the definition of ‘person’ provided in s 995-1 of the Income Tax Assessment Act 1997 did not constitute a contrary intention to the definition of ‘person’ provided in s 2C of the Acts Interpretation Act 1901.
12.That her Honour denied the defendant natural justice in paragraph 26 of her judgment in directly contradicting her finding in paragraph 14 where she correctly sets out the elements of whether a s 162 ITA notice is validly issued (in substance).
13.That her Honour erred at law in confusing the Queensland Court of Appeal finding in Whittaker v The Queen [2016] QCA 116 that the Defendant Whittaker was in that case requested to lodge with a requirement to lodge in this case.
14.That her Honour exercised her discretion unreasonably and or erred at law in finding that Susan Nelson had a proper delegation to institute proceedings for and on behalf of the Commissioner.
15.That Her Honour erred at law and in finding that the Prosecution’s complaint met the required burden of proof and in convicting the defendant.
16.That Her Honour erred at law in failing to dismiss the Prosecution’s complaint as incorrectly laid under s Section 8C(1)(a) instead of Section 8C(1)(b) of the Taxation Administration Act 1953.
17.That her Honour exercised her discretion unreasonably in paragraph 16 in finding that Prosecution met the burden of proof that the Respondent validly issued a Tax File Number (TFN).
During the hearing of the appeal, grounds 1, 2, 3 and 9 were abandoned. However, leave was granted for the appellant to add a new ground 4A in the following terms.
The learned Magistrate erred in a proper construction and application of section 8C(1) of the Taxation Administration Act.
The appellant was represented by counsel at the trial. However, the original 17 grounds of appeal were drafted and filed by the appellant at a time when he was not represented. Subsequently to the filing of the notice of appeal, the appellant obtained new counsel. Counsel for the appellant lodged a lengthy and quite detailed summary of argument. However, the summary of argument does not directly address the grounds of appeal and only tangentially addresses some, such as grounds 4, 4A, 5, 8, 15 and 17. During oral submissions, counsel for the appellant addressed the Court on a number of principal contentions which, according to counsel, and if accepted by the Court, should lead to the convictions being quashed with or without an order for a re-trial. During oral submissions, counsel spent little, if any, time addressing the original grounds of appeal.
During the hearing, I took the view that the respondent had not properly been put on notice of the appellant’s principal arguments until receipt of counsel’s summary of argument and its further development given orally by counsel during the appeal hearing itself. With the consent of the parties, I directed that the respondent was to be permitted to lodge a further written submission within 21 days of receiving the transcript of the appeal hearing and the appellant was to file a written reply within seven days after receiving the respondent’s further written submission.
I turn now to consider each of the grounds of appeal.
Grounds 1, 2, 3 and 9
As earlier indicated, these were abandoned by counsel on behalf of the appellant during the hearing of the appeal.
Grounds 4 and 4A
By these grounds the appellant complains that the Magistrate failed to properly identify the elements of the offence in question and erred in her construction and application of section 8C. I have already dealt with these contentions; these grounds of appeal are not made out.
Grounds 11, 12, 13 and 16
None of these grounds was advanced in the appellant’s summary of argument or submissions on appeal and each is untenable. The Queensland Court of Appeal decision in R v Whittaker[17] referred to by the appellant in the context of ground 13 is of no assistance to the appellant’s case. To the contrary, many of the appellant’s arguments in the present matter were put to the Queensland Court of Appeal and unceremoniously rejected. Whittaker lends strong support to a number of the conclusions reached by the Magistrate in this case.
[17] [2015] QCA 116.
Ground 14
By this ground the appellant complains that the Magistrate erred in finding that Susan Nelson had a proper delegation to institute proceedings for and on behalf of the Commissioner of Taxation. The Magistrate accepted the unchallenged evidence by way of affidavit of William Day and Adele King to the effect that:
(i)On 17 August 2010, the Commissioner’s power to authorise a person to institute a prosecution was delegated to the person performing the duties of “Assistant Commissioner of Taxation, Serious Non Compliance”.
(ii)Between 1 November 2010 and 6 July 2014 William Day held the position of Assistant Commissioner of Taxation, Serious Non Compliance.
(iii)On 22 August 2012, William Day authorised Susan Nelson to institute prosecutions on behalf of the Commissioner of Taxation.
It was open to the Magistrate, on the unchallenged evidence before her, to find that when Susan Nelson instituted the prosecution against the appellant on 18 March 2013, she was appropriately authorised. This ground of appeal is not made out.
Ground 15
The complaint here is to the effect that the Magistrate erred in finding that the prosecution had met the required burden of proof in convicting the appellant. For the reasons earlier given, I am satisfied that the Magistrate was correct in finding that the Final notice, P1, did create a requirement pursuant to a taxation law for the appellant to give an approved form to the Commissioner, in particular, to give income tax returns in the approved form for each of the financial years particularised in the Complaint and Summons. The second element of the offence, that is, that the appellant did not lodge any of the returns as required by the Commissioner, was conceded. Each of the seven charged offences was established beyond reasonable doubt and the Magistrate was correct in so finding.
Grounds 5, 6, 7, 8, 10 and 17
The precise terms of each of these grounds are set out earlier. However, they all relate to the appellant’s objection to what he characterises as the unauthorised use of his TFN in connection with the Final notice, P1, so as to render the issue of that Final notice invalid for the purposes of section 8C(1)(a) of the Taxation Administration Act 1953. Further, the appellant’s argument with respect to ground 4A also canvassed this issue. The appellant pressed a number of contentions in these respects. However, in short, and as best as I can understand the appellant’s argument, he maintains that:
(i)the appellant, sometime prior to 30 October 2006, had written to the then Commissioner of Taxation demanding “that he no longer use [the] TFN [in question] in connection with [the appellant’s] identity, store or maintain a record of it or divulge it to any third party”;
(ii)notwithstanding the demand in (i) above, the appellant was aware from correspondence received from the Australian Taxation Office that a record of the TFN had been stored or maintained;
(iii)at no time has the appellant given consent to the Commissioner to use the TFN in question in connection with the appellant’s identity or to divulge it to any third party and any such authority that might have been in place in the past was withdrawn well before the commencement of the proceedings;
(iv)the appellant’s evident concern is his belief that this TFN has been divulged to the Child Support Registrar by the Commissioner of Taxation, unlawfully, and contrary to the provisions of section 8WB(1)(c) of the Taxation Administration Act 1953 and that such unlawful divulgence will continue to happen; and
(v)this unlawful assignment of this TFN to the appellant and its unlawful divulgence renders the Final notice, P1, invalid.
By email dated 28 March 2013 addressed to the then Commissioner of Taxation the appellant said this (formal parts omitted).
I refer to my correspondence to you 28 days ago in addition to several previous requests, that I be provided with evidence of how and or why a Tax File Number [XXX XXX XXX] was apparently issued to me and accordingly how you believe I am a person within the meaning of s162 of the Income Tax Assessment Act 1935.
I also confirm my previous written notifications to your Office that the Commissioner of Taxation is not authorized in respect to s8WB of the Taxation Administration Act 1953, or otherwise, to use the (TFN) number [XXX XXX XXX] in connection with my identity, to store and maintain a record of the number, or to divulge the number to third parties. As yet you have offered no explanation and have in fact failed or refused to respond.
Please be advised therefore that until such time as you provide how the said TFN was assigned to me and why it has been then divulged by you to third parties without my permission, any notice issued under s162 of the Income Tax Assessment Act 1935 referring to the said TFN requiring me to furnish a return will have no legal force or effect other than to constitute an offence by you personally in respect to use of the said number in connection with my identity contrary to s8WB(1) of the Taxation Administration Act 1953.
I do not stay to consider all of the appellant’s arguments or concerns relating to the issue of and the use by the Commissioner of Taxation of the TFN in question when sending out the Final notice, P1. In my view, all of the appeal grounds and contentions raised in this connection are irrelevant to the question of whether or not the offences charged under the complaint and summons have been properly charged and proved.
The Final notice refers to the TFN in question in close proximity to the heading “Your Reference” at the top right hand corner of the first page of P1. This is the only reference to the actual digits in the TFN recorded in the Taxation Office as referrable to the appellant. On the left hand side of page 1 and broadly adjacent to the reference to the TFN is the name of the appellant and his residential address. There is no doubt that P1 records the name, the address and the TFN referrable to the appellant.
I do not accept the appellant’s contentions that the evidence before the Magistrate did not support a finding that the TFN in question was validly issued to the appellant. Further, whilst the evidence does support a finding that the appellant made demands on the Taxation Office that it no longer use the TFN in question in connection with the appellant’s identity, I am satisfied that the Magistrate was correct to find that the appellant had no power to direct the Commissioner not to use or disclose the TFN in question.
However and in any event, neither of the above mentioned propositions, if made good, would have the effect of rendering the Final notice, P1, invalid. Even if, on the basis of the appellant’s arguments, the Commissioner of Taxation, in the past and/or by noting the TFN on the Final notice, has engaged in an unauthorised use of the TFN, such would be completely irrelevant to the question of whether or not the Final notice, was validly issued. The mere fact that it records the appellant’s purported TFN by way of a reference for administrative purposes within the Taxation Office, even if that TFN were to be unlawfully recorded or not even applicable to the person in question, would say nothing about whether or not the Commissioner has imposed a valid requirement pursuant to a taxation law on the appellant to give an approved form to the Commissioner by a specified time (the first element of the offence).
Complaints concerning the use by the Commissioner of a TFN materially the same as those pressed by the appellant were inflicted on the Queensland Court of Appeal in Whittaker and peremptorily dismissed. It will be of assistance to quote at some length from the judgment of Gotterson JA (with whose reasons Morrison and Philippides JJA agreed).[18]
The first concerns application of the word “person” in s 162. Relevantly, the word is defined to include an individual. The applicant is, indisputably, an individual. The second, third and fourth issues are misconceptions. They centre upon the unsupportable proposition that the lawful making of a request by the Commissioner under s 162 is, in some way, constrained by the tax file number system. It is clear from the terms of s 162 that the making of such a request is not dependent upon an individual having a tax file number or the inclusion of such a number in the request. Moreover, the applicant’s misconceptions extend to the bizarre assertion that a s 162 request, which includes a tax file number for an individual, evidences a contravention by the Commissioner of s 8WB(1) of the Taxation Administration Act 1953 as would invalidate the request. None of these issues is viable. In short, the applicant has failed to identify any issue of statutory interpretation resolved in a way by his Honour which is seriously open to question.
. . . .
I now turn to the proposed grounds of appeal. ...
Grounds 2(b), (h), (i) and (l) to (o) ventilate the issue of whether the applicant was under a legal obligation to comply with each notice. It is true, as the Commissioner sets out in written submissions, that there has been a history of amendments to s 8C(1)(a). It is unnecessary to detail or consider them. Whether the operative form of the section at the time of the alleged offending included the expression “in approved form” or not, the words “information or document”, a constant feature of the section, were plainly wide enough to include an income tax return in the approved form as was requested.
Grounds 2(d) to (g), (j) and (k) concerned the misconceived tax file number arguments advanced by the applicant. It is clear, as I have said, that the legal efficacy of a s 162 requirement is not dependent upon a person having a tax file number or its having been stated in the request; that consigns to irrelevance the applicant’s additional and palpably erroneous claim that he might revoke their deployment of his tax file number under the tax file number system. Grounds 2(p) to (s) are based upon a mischaracterisation of the Magistrate’s conclusion of guilt as involving an exercise of discretion. Clearly, that is wrong. It was for the Magistrate to decide whether the elements of the offences had been proved to the requisite standard; that did not involve the exercise of discretion.
[18] R v Whittaker [2015] QCA 116 at pp 2-4. Special leave to appeal to the High Court was dismissed on the papers, Whittaker v The Queen [2016] HCASL 21.
Conclusion
I dismiss the appeal and will hear the parties as to any consequential orders.
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