Moignard and Commissioner of Taxation (Taxation)

This matter concerned an application by Mr Moignard for leave to raise new grounds of objection under section 14ZZK of the *Taxation Administration Act 1953* (Cth) before Deputy Commissioner K Bean P of the Administrative Appeals Tribunal. The dispute involved the Commissioner of Taxation's assessment of Mr Moignard's income tax liability for the 2007-2008 financial year, including the imposition of an administrative penalty.

The primary legal issues before the Tribunal were whether to grant Mr Moignard leave to introduce a new "capital argument" at a late stage of proceedings, and if so, how that argument should be considered in light of existing evidence and previous rulings. The Tribunal was also required to determine the correct taxable income and the appropriate penalty to be imposed, considering whether the Commissioner's original decision was affected by a lack of reasonable care or recklessness.

Deputy Commissioner Bean P considered various factors for and against granting leave to raise the new argument. While acknowledging potential advantages such as avoiding injustice, promoting efficiency, and Mr Moignard's lack of legal representation before the Tribunal, the Deputy Commissioner weighed these against significant countervailing considerations. These included the fact that the argument was raised for the first time after multiple substantive hearings and a Federal Court appeal, the potential inconsistency with prior court orders regarding new evidence, and the lack of a particularly convincing explanation for the delay. Ultimately, the Deputy Commissioner concluded that granting leave would be inconsistent with the purpose of section 14ZZK and would further delay an already protracted matter.

The Deputy Commissioner set aside the decision under review. In substitution, it was decided that Mr Moignard's taxable income for the 2008 income year was $160,158.75, with tax payable (including Medicare levy and surcharge) of $55,675.05. A penalty of 50% base with a 20% uplift was imposed, resulting in a total penalty amount of $33,405.04, leading to an overall liability of $89,080.09.