Kocharyan v Commissioner of Taxation

In Kocharyan v Commissioner of Taxation, the appellant contested the validity of tax assessments for the 2006 and 2007 income years, asserting that the assessments were nullities due to his lack of authorisation for his tax agent to lodge the tax returns. The appellant filed an interlocutory application seeking leave to adduce further evidence, including a copy of the 2007 tax return and examples of alleged errors in the Tribunal's reasons. The court had to determine whether the appellant was entitled to submit this additional evidence and whether the respondent was out of time to amend the assessment under s 170 of the Income Tax Assessment Act 1936.

The court assessed the validity of the tax return and subsequent assessments under s 164 of the Income Tax Assessment Act 1936 and the service of notices of amendment assessment under s 174. It was also required to consider the meaning of "amend an assessment" and whether the respondent was out of time to amend the assessment under s 170. The court held that the appellant's application to adduce further evidence was an example of ambulatory litigation, which is contrary to the interests of justice. The court found that the appellant had not discharged the onus under s 164 of the Income Tax Assessment Act 1936, and therefore, the Tribunal's decision was correct.

The court dismissed the appellant's interlocutory application and the appeal. It also ordered the appellant to pay the respondent's costs of the interlocutory application and the appeal. The court held that the appellant's attempt to re-ventilate issues for consideration which had already been canvassed and to raise new issues both factual and legal was an example of ambulatory litigation which is antithetical to orthodox practice and procedure in the appellate jurisdiction of the Court. The court held that such an approach would be contrary to the interests of justice and would not facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.