Moltoni and Commissioner of Taxation (Taxation)
[2020] AATA 137
•10 February 2020
Moltoni and Commissioner of Taxation (Taxation) [2020] AATA 137 (10 February 2020)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2019/4259
Re:Peter Moltoni
APPLICANT
AndCommissioner of Taxation
RESPONDENT
DECISION
Tribunal: Deputy President Gary Humphries AO
Date:10 February 2020
Place:Canberra
The reviewable decision of the Commissioner of Taxation dated 1 July 2019 is affirmed.
...............................................................
Deputy President Gary Humphries AO
Catchwords
TAXATION AND BANKRUPTCY – tax liabilities – decision under review to refuse to revoke departure prohibition order (DPO) – whether present proceedings lack utility due to the effect of the Bankruptcy Act 1966 – nature of powers under Part IVA of the Taxation Administration Act 1953 considered – whether DPO must be revoked – whether DPO should be revoked – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Bankruptcy Act 1966
Taxation Administration Act 1953Cases
Adsett v Berlouis (1992) 37 FCR 201
Commissioner of Police v Eaton [2013] HCA 2
Dalco v Federal Commissioner of Taxation [1987] 19 ATR 443
Dietrich v The Queen (1992) 177 CLR 292
Edelstein v Deputy Federal Commissioner of Taxation (1992) 92 ATC 4285
Edelstein v Federal Commissioner of Taxation (1988) 85 ALR 226
Kioa v West (1985) 159 CLR 550
Louise Poletti v Deputy Commissioner of Taxation (1994) 52 FCR 154
Re Tyndall, Ex Parte Official Receiver (1977) 17 ALR 182
Troughton v Deputy Commissioner of Taxation [2008] FCA 18
TZSX and Commissioner of Taxation [2018] AATA 1348Walsh and Commissioner of Taxation [2018] AATA 235
Secondary Materials
International Covenant on Civil and Political Rights, opened for signature on 19 December 1966, 999 UNTS 171 (entered into force on 23 March 1976).
REASONS FOR DECISION
Deputy President Gary Humphries AO
10 February 2020
INTRODUCTION
Mr Peter Moltoni, the applicant in these proceedings, is a bankrupt with a tax debt of $36,354,996.29, according to the Commissioner of Taxation (the Commissioner). The Commissioner has issued a departure prohibition order (DPO), which prevents him from leaving Australia. Mr Moltoni’s wife lives in the United Kingdom, and he has a business there, and he has asked the Commissioner to revoke the DPO to allow him to travel there. The Commissioner has refused to do so, and this refusal decision is what Mr Moltoni has now asked the Tribunal to review.
BACKGROUND
On 21 September 2017 the Commissioner issued to Mr Moltoni an amended assessment of $24,020,289.67 and an assessment of shortfall penalty of $9,315,377.55 for the income year ended 30 June 2007. According to the Commissioner, these assessments arose out of the transfer of US$21 million by Mr Pankaj Oswal from Maruti Holdings Pty Limited to Sinclair Strategies Ltd (Sinclair), a company registered in the British Virgin Islands, on 22 December 2006. The Commissioner formed the view that the payment was, inter alia, ordinary income of Mr Moltoni on the basis that he was the beneficial owner of Sinclair and the payment was paid into bank accounts owned or controlled by Mr Moltoni, including bank accounts in Luxembourg.
On or around 5 October 2017 Mr Moltoni lodged an objection against the assessments. The Commissioner disallowed those objections in full on 19 July 2018. Mr Moltoni then lodged an application in the Tribunal for review of the Commissioner’s objection decision.
On 22 November 2017 the Commissioner issued a DPO pursuant to s 14S(1) of the Taxation Administration Act 1953 (TAA) prohibiting Mr Moltoni, being a person subject to a tax liability, from departing Australia. In November 2017 Mr Moltoni sought and obtained a departure authorisation certificate (DAC) under s 14U of the TAA authorising him to travel to the United Kingdom. He returned to Australia in March 2018 and, shortly thereafter, sought a further DAC for the period April to July or August 2018. On 29 March 2018 the Commissioner declined the DAC. Mr Moltoni sought merits review of this decision but on 24 May 2018 the Tribunal (Deputy President Boyle) affirmed the Commissioner's decision to decline the DAC: TZSX and Commissioner of Taxation [2018] AATA 1348.
On 11 October 2018, Mr Moltoni became a bankrupt by means of a debtor's petition. Mr Peter Macks was appointed trustee of his bankrupt estate (the Trustee). On 12 March 2019 the Trustee elected to discontinue Mr Moltoni's application in the Tribunal for a review of the Commissioner's objection decision of 19 July 2018.
The Commissioner has lodged a proof of debt in the bankruptcy of Mr Moltoni in the amount of $36,354,996.29 (the tax debt).
The Bankruptcy Act 1966 (the Bankruptcy Act) provides that it is an offence for an undischarged bankrupt to leave Australia, or do any act preparatory to leaving Australia, without the written consent of his or her trustee (s 272(1)(c)). On 13 December 2018 and 23 January 2019 the Trustee declined requests by Mr Moltoni to travel overseas while a bankrupt. On 8 March 2019 Mr Moltoni commenced proceedings in the Federal Court seeking an order permitting him to travel to and reside in the UK (the Federal Court proceedings).
On 3 April 2019 the Trustee filed an affidavit in the Federal Court proceedings stating (inter alia) that:
(a)the value of Mr Moltoni's Australian assets required further investigation by him;
(b)he was satisfied that Mr Moltoni controlled significant assets abroad;
(c)investigation into Mr Moltoni's overseas assets was clearly warranted on the information available to him;
(d)further investigation of Mr Moltoni's affairs should be undertaken by him, including an examination of Mr Moltoni. That examination could not sensibly take place before he had obtained all the relevant documentation;
(e)he made his decision to refuse Mr Moltoni's request to travel given the potential impact on the Trustee's investigations of Mr Moltoni leaving Australia, in particular:
(i)the chance that Mr Moltoni would abscond and not be available to answer questions or provide information as the investigations develop;
(ii)the potential for Mr Moltoni to dissipate or further conceal any overseas assets he possesses, particularly given the opaque jurisdictions involved including bank accounts in Luxembourg;
(iii)the probability that the Trustee would publically examine Mr Moltoni once further information has been obtained.
The Federal Court proceedings were listed to commence on 18 July 2019, but on 11 July 2019 Mr Moltoni filed a Notice of Discontinuance of the proceedings. Since then, the Trustee and the Commissioner have agreed to terms for the provision of a Deed of Indemnity in relation to the investigations considered necessary by the Trustee, and the Trustee has undertaken some investigations into the assets and affairs of Mr Moltoni.
For the purposes of the present application, the Trustee has signed a witness statement dated 14 October 2019 in which he:
(a)confirms that he still holds the views expressed in the affidavit of 3 April 2019;
(b)confirms that he remains of the view that, given the potential impact of Mr Moltoni leaving Australia on the Trustee's investigations, he should not be permitted to travel;
(c)states that if Mr Moltoni were to make a further request for permission to travel, he would be unlikely to agree to such a request.
On 4 April 2019, Mr Moltoni wrote to the Commissioner, requesting, among other things, withdrawal of the DPO. He made a further request on 13 May 2019 to be permitted to immediately travel to the UK, either by revocation of the DPO or by being granted a DAC. On 14 June 2019, Mr Moltoni was notified that his request for such a certificate had been refused.
On 16 June 2019, Mr Moltoni wrote to the Commissioner requesting an urgent revocation of the DPO. On 1 July 2019, the Commissioner notified him that this request has been refused. Mr Moltoni applied to the Tribunal on 15 July 2019 for merits review of the Commissioner’s decision of 1 July 2019 to refuse to revoke the DPO.
RELEVANT LEGISLATION
The following provisions of the TAA are relevant to this application. Subsections 14S(1)-(2) provide:
(1) Where:
(a) a person is subject to a tax liability; and
(b) the Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the tax liability; or
(ii)making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged;
the Commissioner may, by order in accordance with the prescribed form, prohibit the departure of the person from Australia for a foreign country.
(2) Subject to subsection (3), a departure prohibition order remains in force unless and until revoked under section 14T or set aside by a court.
Subsections 14T(1)-(2) of the TAA provide that:
(1) Where a departure prohibition order is in force in respect of a person and:
(a)the tax liabilities to which the person is subject have been wholly discharged and the Commissioner is satisfied that it is likely that the tax liabilities to which the person may become subject in respect of, or arising out of, matters that have occurred will be:
(i) wholly discharged; or
(ii) completely irrecoverable; or
(b)the Commissioner is satisfied that the tax liabilities to which the person is subject are completely irrecoverable;
the Commissioner shall, on application being made to the Commissioner by the person to do so or on the Commissioner’s own motion, revoke the departure prohibition order.
(2) Where a departure prohibition order is in force in respect of a person, the Commissioner may, in the Commissioner’s discretion and on application being made to the Commissioner to do so or on the Commissioner’s own motion, revoke or vary the departure prohibition order.
Subsection 14U(1) provides that:
(1)Where, on application made by a person in respect of whom a departure prohibition order is in force:
(a) the Commissioner is satisfied:
(i)that, if a departure authorization certificate is issued in respect of the person, it is likely that:
(A)the person will depart from Australia and will return to Australia within such period as the Commissioner considers to be appropriate in relation to the person; and
(B) circumstances of the kind referred to in paragraph 14T(1)(a) will come into existence within such period as the Commissioner considers to be appropriate in relation to the person; and
(ii)that it is not necessary or desirable for the person to give security under subsection (2) for the person’s return to Australia; or
(b)in a case where the Commissioner is not satisfied with respect to the matters referred to in paragraph (a):
(i)the person has given security under subsection (2) to the satisfaction of the Commissioner for the person’s return to Australia; or
(ii) if the person is unable to give such security, the Commissioner is satisfied that:
(A)a departure authorization certificate should be issued in respect of the person on humanitarian grounds; or
(B)a refusal to issue a departure authorization certificate in respect of the person would be detrimental to the interests of Australia;
the Commissioner shall issue a certificate authorizing the person to depart from Australia for a foreign country on or before the seventh day after a day (being a day later than, but not more than 7 days later than, the day on which the certificate is issued) specified in the certificate.
The Tribunal is empowered to undertake merits review of the Commissioner’s decision pursuant to s 14Y:
(1) Applications may be made to the Tribunal for review of decisions of the Commissioner under section 14T or 14U.
EVIDENCE BEFORE THE TRIBUNAL
Relevantly to, first, the decisions to issue both an amended assessment and an assessment of shortfall penalty for the income year ended 30 June 2007 and, secondly, the decision to impose a DPO on Mr Moltoni, the Commissioner placed certain matters before the Tribunal pertaining to the payment of US$21 million to Sinclair on 22 December 2006. Those matters were summarised as follows in the Commissioner’s submissions of 3 December 2019:
The objection decision disclosed that the assessments arose out of a payment of US$21 million made on 22 December 2006 (the payment) by Maruti Holdings Pte Limited (Maruti) to Sinclair Strategies Limited (Sinclair). Maruti was a company associated with Mr Pankaj Oswal. The payment was the subject of proceedings brought by Maruti against Sinclair, Mr Mick Cahill and the applicant [Mr Moltoni] in the High Court of Justice of the Eastern Caribbean Supreme Court, Territory of the Virgin Islands (BVI proceedings). In the BVI proceedings, Maruti sought recovery of the payment on the basis that the payment was made as a result of threats made by Mr Cahill and the applicant to Mr Oswal to disclose to the ANZ Banking Group Ltd (ANZ) certain financial matters relating to the construction by entities associated with Mr Oswal of an ammonia plant in Western Australia which the ANZ had financed.
Sinclair filed a Defence in the BVI proceedings dated 12 February 2013 accompanied by a "Certificate of Truth" signed by the applicant as "Director" of Sinclair. The essence of the defence advanced by Sinclair was that the payment had been made to Sinclair in return for the provision of consultancy services by Sinclair to Oswal Projects Limited pursuant to a Consultancy Agreement dated 18 September 2006.
Sinclair, Mr Cahill and the applicant subsequently applied for summary judgment on, or relief striking out, the claim made against them in the BVI proceedings. Both Mr Cahill and the applicant swore affidavits in support of that application. The position of the defendants in the BVI proceedings was described by the judge in the judgment on the application for summary judgment as follows (emphasis added):
[3] Mr Cahill identifies himself as the Managing Director of an entity called Intertrust Guernsey, part of the Intertrust Group. He is an Associate of the Institute of Chartered Secretaries and Administrators and is based in Guernsey. Mr Cahill, or rather Intertrust Guernsey, was introduced to Mr Oswal and his then partner Vikas Rambal (Mr Rambal) by Mr Moltoni in 2001. The purpose of the introduction was so that Intertrust Guernsey could provide company incorporation and administration services as part of the overall tax planning structure in relation to Mr Oswal's plan (which he subsequently realized) to construct a liquid ammonia plant in Western Australia. Mr Cahill says that the tax planning advice was provided by senior tax Counsel in Western Australia. Intertrust Geuernsey [sic] formed companies and provided corporate directors in accordance with that advice. Mr Cahill's involvement was as signatory for certain of the corporate directors. It was Intertrust Guernsey, according to Mr Cahill, which supplied Mr Moltoni with a draft of the consultancy agreement entered into between Sinclair and an Oswal entity called Oswal Projects (Oswal Projects) and which the Defendants say provided the consideration for the payment of the $21 million to Sinclair. Mr Cahill signed that agreement for one of Sinclair's corporate directors, an entity supplied by Intertrust Guernsey. Mr Cahill says that Intertrust Guernsey continued to act for Mr Oswal until 2011, although he himself had no contact after some point in 2009.
[4] Mr Moltoni is described by Mr Cahill as a "well respected consultant". Maruti's statement of claim describes Mr Moltoni as an Australian-tax accountant who, at the material time, was employed by or a partner in a firm called Crowe Horwath in Perth.
[5] Sinclair is a British Virgin Islands company. Mr Moltoni and Mr Cahill say in their evidence that it was incorporated in 2006 for what they call, meaninglessly, "tax structuring purposes". Mr Cahill says that it was wholly owned and controlled by "persons from" Intertrust Guernsey. Although Sinclair is said to have been wholly owned by those persons, Mr Cahill claims that "no person from Intertrust Guernsey" could directly benefit from "the structure" other than receipt of US$100 on its "formal" winding up. Mr Cahill says that Intertrust Guernsey provided day to day administration and secretarial services to Sinclair, together with corporate directorships through two companies, no doubt captive Intertrust entities [Cosign Services Ltd and Spread Services Ltd] until around 2007, when a new corporate services provider appears to have taken over from Intertrust Guernsey. Mr Moltoni, on the other hand, claims to have been appointed a director on Sinclair on 8 March 2013 (while having signed its defence on 12 February 2013 purportedly acting as its director) and to have been its sole director thereafter. Sinclair, as I have already intimated, claims to have provided Oswal Projects with consultancy services in Western Australia and to have received $21 million from Maruti, allegedly in consideration of the provision of those services. Apart from what can be gleaned from these opaque references, nothing is known about Sinclair. . ..
[10] On 12 February 2013 Sinclair put on a defence. I think it is fair to say that the only matter of substance which it raises is that the payment by Maruti of the US$21 million was for services supplied by Sinclair to Oswal Projects "regarding the construction of a fertilizer plant in Papua New Guinea and litigation being pursued in Australia by Mr Rambai". A copy of the alleged contract (described as a Consultancy Agreement) is annexed to the defence. It is dated 18 September 2006 and it stipulates for the provision of by Sinclair to Oswal Projects of services "in respect of proposed construction of a world scale ammonia/urea plants [sic] on various locations". It refers to Sinclair as agreed to evaluate "the policy framework relating to the downstream processing of gas reserves in Papua New Guinea, but makes no express mention of a fertilizer plant in that state. The minimum fee was to be $5 million, but that was only payable upon the signing of an MOU with a company referred to as Oil Search Limited. Otherwise, Sinclair was to be paid fees at such a rate and at such times as should be agreed between the parties.
[11] Sinclair's defence does not specifically deny the allegations of blackmail. It confines itself to saying only that the $21 million was payment for the supply of consulting services to a third party, Oswal Projects.
In his affidavit in the BVI proceedings, the applicant deposed to the incorporation of Sinclair in April 2006 and its purposes ("tax structuring purposes") and his becoming a director on 8 March 2013 (at [6]). He deposed to the substance of Sinclair's defence in the BVI proceedings (at [8]) and to the effect that he negotiated the terms of the Consultancy Agreement on behalf of Sinclair with Mr Oswal over the course of four days in or around early September 2006 (at [11]). He also described the consultancy services provided by Sinclair (at [12]).
The fate of the US$21 million paid by Maruti to Sinclair has never been satisfactorily explained by the applicant. At [29] of the judgment in the BVI proceedings, it was recorded that the material before the BVI Court indicated that the payment was paid at the direction of the applicant to Mr Oswal into a Luxembourg bank account held by Sinclair. The two shareholders of Sinclair were two other BVI companies, Cosign Nominees Ltd (Cosign) and Spread Nominees Ltd (Spread). Those companies held their shares in Sinclair on behalf of a Cayman Islands company, Nairn Investments Limited (Nairn). The applicant was not a director or shareholder of Nairn, but was a "Principal Potential Donee" of Nairn. Nairn held bank accounts in the Channel Islands.
An application to open a bank account in the name of Sinclair with Banque de Luxembourg appears at Annexure PM 44 of the affidavit of the applicant sworn 16 September 2019 in these proceedings. That application was completed by Mr Cahill and a Mr Ronald Hollingsworth as directors of Cosign and Spread respectively. The application identified the "Source of Funds" as "[i]nvestment income/consultancy fees generated in a company controlled by Fortis Guernsey for the potential benefit of the beneficial owner (Principal Potential Donee)".
On the basis of the material in the BVI proceedings, together with some other information in the Commissioner's possession, the Commissioner formed the view to the effect that the payment was assessable income of the applicant as it was for services provided by the applicant to Mr Oswal and his related entities in Western Australia and the applicant was the beneficial owner of Sinclair.
Mr Moltoni made several submissions to the Tribunal in relation to his application, and appeared before the Tribunal as a self-represented applicant. In his evidence, he pointed out that he had voluntarily returned to Australia in October 2017 to discuss his affairs with the ATO. He participated in an interview with the ATO in May 2018 in relation to his tax affairs, and provided what he said was all the relevant information to the Trustee following his appointment. Two further requests for assistance – in December 2018 and January 2019 – were comprehensively responded to[1] by Mr Moltoni’s solicitor. No further requests for assistance have been made since then, he said. He emphasised in his evidence that he had sought at all times to cooperate with the Trustee’s investigation.
[1] The use of italicised text in this decision generally indicates direct quotation.
His evidence was that, at the point of bankruptcy, his assets consisted of a property at Subiaco in Western Australia, shares in two companies and a small amount of cash at bank. The property in Subiaco has since been sold with most of the proceeds being applied by the Trustee in fees and charges, and the shares in the companies yielded no value. Only a small amount of money was held in a bank account in the UK, and there were no bank accounts in Australia. In other words, he asserted that there were no assets of any value in the estate administered by the Trustee. Furthermore, he said he had no income. He has no means to pay the tax debt. His registration as a tax agent was cancelled by the Taxation Practitioners Board in June 2019.
He told the Tribunal that he withdrew from the Federal Court proceedings in July 2019 because he could no longer sustain the cost.
He gave evidence that he does not have, and has never had, any interest in the payment by Mr Oswal to Sinclair on 22 December 2006. He has no interest, beneficial or otherwise, in Sinclair, and has never had an interest. He does not control Sinclair.
Mr Moltoni gave evidence of the hardship the DPO was causing himself and his family. He has not been able to spend time with his wife of two years, who has returned to the UK to support her ageing and infirm parents. His wife, in an affidavit of 16 September 2019, said that the DPO was causing her severe financial harm as she had to support both her husband and herself from her life savings. She was not, at that time, employed. She has been prescribed remedies for the anxiety caused by the DPO. Mr Moltoni said that his wife’s parents were also being caused severe stress by the DPO. His own stress and anxiety has been exacerbated by the recent diagnosis of his father-in-law with a serious illness, and his inability to be present to support his wife and father-in-law.
Mr Moltoni was cross-examined. He was shown various documents relating to Sinclair and Nairn. In one of those, a Bank Account Mandate in relation to Nairn, he is described as the Principal Potential Donee. In a set of email correspondence, an email of Mr Moltoni included the sentence:
Some time ago I contacted your office regarding transferring the unitholding from Sinclair Strategies to another of my companies.
He denied, however, that Sinclair was one of his companies. He denied that he had an interest in the US$21 million paid to Sinclair in December 2006. He said that he was unable to give a satisfactory explanation of the fate of the payment because he did not know what that fate was. He received none of that money. He admitted to being the go-between between Mr Cahill and Mr Oswal.
The Trustee, Mr Peter Macks, gave evidence by videoconference from Adelaide. He affirmed that the contents of the affidavit he swore on 3 April 2019 and the witness statement he signed on 14 October 2019 remained true. Under cross examination by Mr Moltoni, he confirmed that he had conducted, and was in the process of conducting, investigations into the existence of undisclosed assets of Mr Moltoni’s estate. However, in answer to further questions about the nature of those investigations, he told the Tribunal that he was anxious not to reveal the extent or the result of the investigations. He said that those investigations showed that there should be assets available to the estate. He said that he was investigating transactions between Mr Moltoni and third parties which may fall into the category of transactions conducted with the intent to put assets beyond the reach of creditors. He declined to answer questions about the details of those investigations. He confirmed that he had conducted investigations into a number of companies referred to by Mr Moltoni.
Mr Macks confirmed that it would be possible to examine Mr Moltoni for the purposes of his investigation even if he were overseas, but he told the Tribunal that such an examination would be unnecessary, problematic and burdensome in those circumstances.
The Tribunal asked Mr Macks whether Mr Moltoni had been uncooperative or unhelpful with his investigations to date. He answered in the affirmative, saying that Mr Moltoni had sometimes provided him with selective information in answer to inquiries. He would have expected a more fulsome and detailed explanation of certain matters from Mr Moltoni, which he did not receive. He had formed an adverse view about the extent to which Mr Moltoni has been cooperative.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
Three issues fall to be determined by the Tribunal:
(a)whether the present proceedings lack utility because of the provisions of the Bankruptcy Act;
(b)whether the DPO must be revoked by operation of s 14T(1)(b) of the TAA;
(c)whether the DPO should be revoked pursuant to the discretion in s 14T(2) of the TAA.
CONTENTIONS
The Commissioner
The refusal of a trustee to provide consent to travel overseas is reviewable by the Federal Court under s 90-15 of Schedule 2 of the Bankruptcy Act. This was the jurisdiction that Mr Moltoni sought to engage in the Federal Court proceedings.
The Commissioner argued that, having regard to the evidence of the Trustee, the Tribunal (standing in the shoes of the Commissioner) cannot be satisfied that the applicant's tax liabilities are completely irrecoverable within the meaning of s 14T(1)(b) of the TAA. The Trustee considered that further investigation of the asset position of the bankrupt is warranted and, with the support of an indemnity from the ATO, proposes to carry out those investigations. The potential outcome of those investigations is the identification of further assets of Mr Moltoni to be devoted towards the satisfaction of his liabilities, including his taxation liabilities.
The Commissioner further contended that, even if the Tribunal were not satisfied that Mr Moltoni’s tax liabilities were completely irrecoverable, it should not go behind the Trustee's evidence in this regard. It is the duty of a trustee under the Bankruptcy Act to take appropriate steps to recover property for the benefit of the estate (s 19(1)(f)). For this purpose, the trustee is granted power to investigate the bankrupt's conduct and his examinable affairs (s 19AA). The trustee is also granted the power to determine whether, and the conditions on which, the bankrupt will be permitted to travel from Australia (s 272(1)(c) and (2)). It is an offence for the bankrupt to travel when the trustee has refused permission for this to occur.
In discharging this duty, it was contended, the trustee is an officer of the Court and subject to the supervision of the Court: see Adsett v Berlouis (1992) 37 FCR 201 at 208-209. In relation to the power of a trustee to give or refuse permission to travel overseas, the Court's supervisory jurisdiction is of the widest possible kind. The Court has the full power to substitute for the decision of the trustee on whether, and the conditions on which, the bankrupt should be permitted to travel from Australia, by its own decision. As such, the present proceedings before the Tribunal lacked utility, in the Commissioner’s submission.
Even if the Tribunal revoked the DPO, Mr Moltoni would not be able to travel overseas without the permission of the Trustee under s 272(1)(c) of the Bankruptcy Act. Since the discontinuance of the Federal Court proceedings, the Trustee has not been asked to give him permission to travel overseas and, on the information available to him, would be unlikely to give such permission.
The Commissioner argued that the Tribunal is an executive agency standing in the shoes of a creditor of the bankrupt estate. In the exercise of his power under s 272(1)(c), the Trustee is not subject to the supervision of the Tribunal. For the Tribunal to go behind the views expressed by the Trustee in his witness statement dated 14 October 2019 would be to subject the Trustee's actual and anticipated administration of Mr Moltoni’s bankrupt estate to a supervision beyond its jurisdiction and on necessarily less than the full information available to the Trustee.
Moreover, the Tribunal would be exercising a purported supervisory jurisdiction which would either lack utility or be potentially corrosive of the discharge by the Trustee of his duties and the exercise by the Court of its supervisory jurisdiction. This is because, if and to the extent the Tribunal agreed with the position of the Trustee, that agreement would be necessarily duplicative. In contrast, if and to the extent the Tribunal disagreed with the position of the Trustee, that disagreement would bind neither the Trustee nor the Court. The only effect of the Tribunal's disagreement would be to compromise or embarrass the Trustee in discharge of his statutory functions as an officer of the Court and to complicate the Federal Court's supervision of those functions.
For the Tribunal to exercise the power to review the Commissioner’s decision under s 14T of the TAA would be to subject the Trustee's administration to a collateral scrutiny beyond its jurisdiction. If Mr Moltoni wishes to travel overseas, the first step is for him to request the Trustee's permission under s 272(1)(c). If the Trustee declined such permission the next step would be for Mr Moltoni to engage the supervisory jurisdiction of the Court. Alternatively, if the Trustee or the Court granted such permission, it may be accepted that the Commissioner (or the Tribunal standing in his shoes) would likely not maintain the DPO, or would grant a DAC permitting the travel which the Trustee or Court authorised. But these proceedings should not be used as a means of anticipating or influencing the outcome of the Trustee's decision or the Court's supervision, it was submitted.
Mr Moltoni
Mr Moltoni submitted that the Tribunal’s decision should be made in the context of Australia’s obligations under Article 12(2) of the International Covenant on Civil and Political Rights, which states Everyone shall be free to leave any country, including his own. This principle has been recognised by domestic courts in Australia, including by Deane J in Re Tyndall, Ex Parte Official Receiver (1977) 17 ALR 182:
Bankruptcy does not, of itself, involve any criminal offence. A citizen should be free to travel if and when his commercial activities and personal desires prompt him so to do. (at 190)
Mr Moltoni submitted that the Tribunal should set aside the Commissioner’s decision and revoke the DPO, and cited four alternative grounds for doing so. The first was that the Tribunal, standing in the shoes of the Commissioner, should be satisfied pursuant to s 14T(1)(b) that his tax liabilities are completely irrecoverable. In that event, he argued, no discretion exists; the Tribunal is bound to revoke the DPO.
He submitted that, on the facts before the Tribunal, all the assets available in his estate have been fully consumed by the Trustee in fees and charges. The Tribunal was being asked by the Commissioner and the Trustee to accept, on the basis of speculation, that there are other, hitherto unknown, assets available to the estate which in due course would permit the recovery of some or all of the tax debt. Neither has demonstrated the basis on which that speculative conclusion has been reached. In that respect, the Commissioner had failed to comply with ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the AAT Act) by not placing before the Tribunal all relevant documents in his possession, including documents justifying his view that other assets are or may be available to satisfy the tax debt. The Trustee’s refusal to answer questions about the basis for his belief that there were further, undiscovered assets should satisfy the Tribunal that there is no objectively reasonable basis for that conclusion. In this respect, Mr Moltoni submitted that the Commissioner bore the burden of proving that the recovery of the tax debt would be impaired by the revocation of the DPO.
Mr Moltoni argued that, had the Commissioner not wished to reveal details of the Trustee’s investigation to him by providing those documents, he could nonetheless have provided them to the Tribunal and sought an order under s 35 of the AAT Act to keep the content of the documents confidential from Mr Moltoni. In the absence of any evidence, other than the assertion of the Trustee, that there are or may be other assets, the Tribunal cannot be satisfied that the tax liability is completely irrecoverable. He cited various provisions of the Bankruptcy Act which might theoretically have been available to produce such assets, but asserted that they had not been used or could not be used to identify such assets.
The other three grounds on which Mr Moltoni sought to overturn the DPO relate to the discretion granted to the Commissioner in s 14T(2) to vary or revoke a DPO. The second ground for setting aside the DPO was that it does not serve the purpose of Part IVA of the TAA, in that it does not prevent steps being taken to require the assistance of Mr Moltoni in the endeavours of the Trustee even if Mr Moltoni resides in the UK. He referred to provisions of the Bankruptcy Act that allow Australian courts to seek the assistance of the courts of other countries with jurisdiction in bankruptcy, particularly those of the UK, including the power to conduct examinations of a bankrupt in those countries. Mr Moltoni cited, inter alia, the decisions of Young J in Dalco v Federal Commissioner of Taxation [1987] 19 ATR 443 and of Deputy President Molloy in Walsh and Commissioner of Taxation [2018] AATA 235 as authority for the proposition that a DPO must be assessed, on reasonable grounds, to be efficacious in achieving the purpose of recovering tax liabilities and, if it is not efficacious, it should be discharged.
Relevantly to this argument, Mr Moltoni submitted that:
a)the DPO has been in existence for 2 years now and has not resulted in any contribution;
b)he has no assets to pay the tax liability;
c)the Trustee has conducted extensive investigations for over 12 months and has not provided any evidence of any assets to meet the tax liability;
d)the Trustee continues to hold his passport;
e)as he intends to live in the UK, all recoverability mechanisms available to the Trustee will continue to be available to him there;
f)his moving to the UK therefore constitutes no impairment to the Trustee’s task;
g)moving to the UK may actually assist the Trustee, in that it would allow him to earn income there which would be a contribution to the administered estate; and
h)he has been available to provide assistance to the Trustee since appointment and no assistance has been requested for some time.
The third ground was that the continuation of the DPO constituted a severe intrusion into Mr Moltoni’s freedom of movement and was having a severely deleterious effect on himself and his family. In particular he drew attention to the damaging effect of the DPO on his wife’s physical and mental health and on her finances, as she was supporting both of them financially. These disbenefits outweigh whatever benefit is conferred by the continuation of the DPO. He argued that the DPO was operating as a penalty on Mr Moltoni in this context, rather than a tool to realistically effect the recovery of assets to the estate.
The fourth ground was that control over Mr Moltoni as a bankrupt is correctly exercised by the Trustee and, through him, by the Federal Court. The Commissioner’s DPO is thus otiose, as the Federal Court exercises ultimate jurisdiction over his ability to travel.
CONSIDERATION
Do the present proceedings lack utility?
Both the Commissioner and Mr Moltoni submitted that the present proceedings lack utility, in that, should the DPO be revoked by the Tribunal, Mr Moltoni would still be unable to travel overseas since the Trustee’s power to refuse permission to travel is unaffected by the Tribunal’s decision. The Commissioner submitted that a decision by the Tribunal to revoke the DPO would be binding neither on the Trustee nor on the Federal Court. Indeed, for the Tribunal so to act could potentially embarrass or compromise the Trustee in the performance of his duties. The Tribunal was entering into treacherous waters by entertaining Mr Moltoni’s application.
In these circumstances, it was said, the proper course of action for a bankrupt is to seek the permission of his trustee to obviate the DPO; if the trustee refuses, an appeal lies to the Federal Court. In the present case, Mr Moltoni abandoned that option, but should now resume that course if he seeks review of the refusal. Where a bankrupt eschews an appeal to the Federal Court and instead seeks administrative review by the Tribunal, the proper course of action, according to the Commissioner, is not for the Tribunal to decline to exercise its power under s 14Y of the TAA but is for it to not go behind the decision of the trustee, or to scrutinise or examine the views formed by the trustee. Mr O’Meara SC, for the Commissioner, said that it’s not a matter for the Tribunal to form a view about the appropriateness of, or basis for, the Trustee’s judgement. This is because the Tribunal is conducting merits review of the Commissioner’s decision, not the Trustee’s decision.
Mr Moltoni also submitted that any decision the Tribunal might make about the DPO would be ineffective, since the Trustee’s refusal would remain. Because the DPO is otiose, it should therefore be revoked, leaving the Trustee and the Federal Court an unfettered opportunity to resolve the issue in the event Mr Moltoni pursued that course of action.
I cannot accept either submission. It is evident that the Parliament has created a “belt and braces” arrangement to deal with restrictions on the movement of tax debtors, one under the TAA and one under the Bankruptcy Act. The exercise of powers granted to the Commissioner under the former is reviewable by the Tribunal, whereas powers exercisable by the Trustee under the latter are reviewable by the Federal Court. The Tribunal observed in Walsh and Commissioner of Taxation [2018] AATA 235 at [30] that the powers of the trustee broadly coincide with the Commissioner’s. They are not, however, identical. There is nothing in either statute to suggest a legislative “hierarchy”, whereby one set of powers must be exercised deferentially to the other, or that merits review of the exercise of one should be constrained or limited in some way by the potential review of the exercise of the other. Had such a hierarchy been intended, it would have been a simple matter to have drafted either or both statutes to express it.
In those circumstances, it must be assumed that each set of powers is to be exercised independently. Indeed, the possibility that the Commissioner and a trustee may take a different view about the requirements for dealing with a bankrupt tax debtor cannot be excluded, and the criteria for the exercise of the power in each case must be considered in the context of the legislation which creates it. To view the statutes otherwise is to assume that they were intended in certain circumstances to be in conflict. In Commissioner of Police v Eaton [2013] HCA 2, Gageler J said at [98]:
Stated at its highest level of generality, it is that statutory texts enacted by the same legislature are to be construed so as far as possible to operate in harmony and not in conflict. The principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create “a very strong presumption that the...legislature did not intend to contradict itself, but contended that both...should operate”. [References omitted]
In the case of the TAA, s 14Y confers a right on an aggrieved tax debtor to obtain merits review by the Tribunal of the Commissioner’s refusal to allow him or her to travel overseas. There is simply no basis for the Tribunal to refuse this legislative entitlement because of the possibility that another agency of the state might exercise a similar power in a different fashion in the future. Nor, in my opinion, is the Tribunal entitled to delegate its function of merits review to another body, merely because that body exercises powers analogous to those which produced the reviewable decision before the Tribunal. If the power is conferred by statute, the Tribunal must exercise the power, when requested, by considering the evidence and then determining the correct or preferable decision. The submission that the Tribunal need not form a view about the necessary preconditions to the exercise of such a power must be rejected.
Of course, the Tribunal would always be at pains to avoid placing itself in avoidable conflict with the Federal Court. If, for example, the Federal Court were to uphold on appeal the decision of a trustee to refuse a bankrupt the right to travel overseas, it is very difficult to imagine the circumstances in which the Tribunal, faced with the same factual situation, would take a different view on an application under s 14Y and grant the bankrupt such a right. However, this scenario is entirely different to one where the Tribunal is asked to make a decision under s 14Y in the absence of any competing decision by the court.
Even if I were to accept that the present proceedings lack utility because of the possibility that the Federal Court might be called upon to exercise a similar power in the future, it would seem to me that Mr Moltoni’s submission as to the appropriate course of action is to be preferred to the Commissioner’s, i.e. the Tribunal should set aside any subsisting DPO so that it has no potential to frustrate any Federal Court decision to allow the bankrupt to travel.
Are Mr Moltoni’s tax liabilities completely irrecoverable under s 14T(1)(b)?
His Honour Jessup J in Troughton v Deputy Commissioner of Taxation [2008] FCA 18 said that the decision-maker should, in circumstances analogous to the present ones, first consider whether he or she must revoke the DPO pursuant to s 14T(l); only if that question is answered in the negative should the decision-maker then turned to consider whether the DPO should be revoked under s 14T(2). That is the approach the Tribunal will adopt here.
Paragraph (a) in s 14T(1) of the TAA is plainly not relevant to these proceedings. Section 14T(1)(b) imposes a duty on the Commissioner (and on the Tribunal standing in his shoes) to revoke a DPO where he is satisfied that the tax liabilities of the person the subject of the DPO are completely irrecoverable. The mere state of being bankrupt does not render a tax liability completely irrecoverable: Edelstein v Federal Commissioner of Taxation (1988) 85 ALR 226 at 235-236.
The Commissioner submitted that the test, under s 14T(1)(b), requires the Tribunal to ask itself the question: are the investigations of the Trustee into the recovery of the estate’s assets (including the fate of the US$21 million transfer of December 2006) futile? If it is not satisfied that they are futile, then it cannot revoke the DPO pursuant to that paragraph. The Tribunal accepts that this is an appropriate summary of its task (and, indeed, that appeared to be Mr Moltoni’s position as well). In addition, the burden of demonstrating that the investigations are futile falls on Mr Moltoni, the Commissioner contended. That also appears to be the appropriate construction of the paragraph and, again, that appears to be Mr Moltoni’s submission too.
For the reasons given below, I consider that the Trustee’s investigations have a real potential to realise assets of Mr Moltoni’s estate. A fortiori, I cannot be satisfied that those investigations are futile. Because the tax liabilities are not completely irrecoverable, therefore, the DPO cannot be revoked pursuant to s 14T(1)(b).
Should the Departure Prohibition Order be revoked under s 14T(2)?
Section 14T(2) gives the Commissioner an unfettered discretion to revoke or vary a DPO: per Northrop J in Edelstein v Deputy Federal Commissioner of Taxation (1992) 92 ATC 4285 at 4288. This is exercisable even if the conditions for the revocation of the DPO pursuant to s 14T(1)(b) are not made out. The Commissioner summarised the Tribunal’s task under s 14T(2) as requiring it to consider the question: would the Trustee’s investigations be inhibited by Mr Moltoni relocating to the UK? If the answer is yes, then the discretion conferred by that subsection to revoke the DPO should not be exercised.
With respect, I think that the test is more nuanced than that. It is a question of balancing the assistance that might be rendered to the Trustee’s task by upholding the DPO against whatever hardship the bankrupt might experience in that circumstance. That act of balancing competing considerations was referred to by Lockhart, Gummow and Foster JJ in Louise Poletti v Deputy Commissioner of Taxation (1994) 52 FCR 154 at 159-160:
The requirement that reasonable grounds must exist to support the Commissioner's belief is a safeguard to the taxpayer that departure prohibition orders will not be made against him or her in unreasonable circumstances. The making of such an order is a severe intrusion into a person’s liberty, privacy and freedom of movement. On the other hand, the protection of the revenue is of great importance to Australia. These two interests must be balanced. Section 4S is an example of a situation where it is necessary to achieve this balance.
In Walsh the Tribunal considered that the competing considerations weighed in favour of the taxpayer. Having noted the destructive impact of the DPO on the applicant’s family’s emotional and financial well-being (at [43]) Deputy President Molloy came to the following conclusion at [38]-[39]:
There is no evidence, however, from either of the present (or past) trustees to support these submissions, and no real explanation as to the assistance which might be obtained from the applicant’s continued presence in the country.
In all the circumstances, taking account of all the submissions, I am not satisfied that the departure of the applicant from Australia will make it less likely that his tax liability will be discharged in either in whole or in part, or that the ability of the Commissioner to recover the tax will be impaired. Accordingly, I am not satisfied that the purpose of the legislation will be met by continuation of the DPO.
Before assessing the question posed by the Commissioner, namely, would the Trustee’s investigations be inhibited by Mr Moltoni relocating to the UK, a threshold question must be answered: is there a reasonable potential that there are assets available to the bankrupt estate which those investigations may uncover?
Mr Moltoni submitted that he has fully cooperated with the Trustee’s investigation to date, that there are plainly no assets available to satisfy the tax debt and that the Trustee’s speculation about the existence of overseas assets should be given little weight since he was unable or unwilling to demonstrate the basis (either live in the hearing or by way of confidential disclosure to the Tribunal) for his opinion that there should be such assets available to the estate. Accordingly, he submitted, the Tribunal can be satisfied that there are no such assets and the Trustee’s investigations are therefore futile.
I am unable to accept this submission. The Trustee is performing a task conferred on him pursuant to the Bankruptcy Act under the effective supervision of the Federal Court. His reticence to provide details of his performance of that task in the presence of the person being investigated is understandable if, as was contended, that person has taken steps to conceal the details of his tax affairs so as to defeat the recovery of the tax debt. On that premise, the provision of details of the Trustee’s incomplete investigation could conceivably allow Mr Moltoni to take further steps to frustrate the Trustee’s task.
The Commissioner chose not to rely upon the confidentiality provisions in s 35 of the AAT Act to lead evidence on these matters from the Trustee in a closed hearing. He argued that the Tribunal should accord significant weight to the professional opinion of the Trustee, notwithstanding that the basis for that opinion was not laid before the Tribunal. The Commissioner did, however, outline to the Tribunal the trail of evidence which, he submitted, should lead it to conclude that there was at least some likelihood that Mr Moltoni was the beneficiary of the payment of the US$21 million.
It is convenient to summarise that evidence, furnished principally through tendered documents. US$21 million was paid into the Luxembourg account of Sinclair in December 2006. The shareholders of Sinclair were two companies, Cosign and Spread, who held their shares on behalf of Nairn. In bank documents associated with the payment, Mr Moltoni is described as the Principal Potential Donee of Nairn. I note that none of these allegations were denied by Mr Moltoni.
In an affidavit provided in the BVI proceedings in 2013, Mr Cahill denied that he had controlled Sinclair at the relevant time. Mr Moltoni also denied that he, Moltoni, controlled Sinclair. However, in an email of 2013 Mr Moltoni referred to Sinclair as another of my companies (or at least that inference is open on one reading of the email).
That US$21 million was paid to Sinclair is not in dispute. The reason for the payment is contested. Mr Moltoni says that the payment was satisfaction for consultancy services provided by Sinclair to Maruti. The Commissioner says it is open to infer, as was pleaded before the Eastern Caribbean Supreme Court, that the payment was made because Mr Cahill and Mr Moltoni were blackmailing Maruti. Although the court outlined at some length the allegations of blackmail made against the two men, it came to no opinion as to the veracity of the allegations because it was unnecessary for the resolution of those proceedings to do so. However, it did make some comments about Sinclair at [5], as follows:
Sinclair is a British Virgin Islands registered company. Mr Moltoni and Mr Cahill say in their evidence that it was incorporated in 2006 for what they call, meaninglessly, ‘tax structuring purposes.’ Mr Cahill says that it was wholly owned and controlled by ‘persons from’ Intertrust Guernsey. Although Sinclair is said to have been wholly owned by these persons, Mr Cahill claims that ‘no person from Intertrust Guernsey’ could directly benefit from ‘the structure’ other than by the receipt of US$100 on its ‘formal’ winding up. Mr Cahill says that Intertrust Guernsey provided day-to-day administration and secretarial services to Sinclair, together with corporate directorships through two companies, no doubt captive Intertrust entities until around 2007, when a new corporate services provider appears to have taken over from Intertrust Guernsey. Mr Moltoni, on the other hand, claims to have been appointed a director of Sinclair on 8 March 2013 (while having signed its defence on 12 February 2013, purportedly as its director) and to have been its sole director thereafter. Sinclair, as I have already intimated, claims to have provided Oswal Projects with consultancy services in Western Australia and to have received US$21 million from Maruti, allegedly in consideration of the provision of those services. Apart from what can be gleaned from these opaque references, nothing is known about Sinclair.
None of this essentially-documentary evidence proves that Mr Moltoni received the benefit of the US$21 million payment. However, it does create a very plausible basis on which to suspect that he may have done so, as pleaded before the Caribbean court. The arrangements for the payment which those pleadings describe were nothing if not opaque and, it seems, deliberately so. Mr Moltoni did not dispute that he had a guiding hand in the setting up of those arrangements. Sinclair was the intended recipient of a very substantial sum of money but neither Mr Cahill nor Mr Moltoni seemed able to provide the court with any explanation as to who controlled Sinclair. With the limited overview available to this Tribunal, the arrangements do appear at first blush to amount to an exercise in deliberate concealment motivated by a desire for substantial financial gain. Against this background, it is reasonable to suppose that Mr Moltoni’s involvement may have been for personal financial gain.
In those circumstances, the conclusion can reasonably be reached that there is a sound basis for the Trustee to investigate the payment. There is a distinct possibility that the payment could have generated assets available to Mr Moltoni’s estate in bankruptcy. That being the case, a suitable opportunity should be afforded the Trustee to conduct the investigation.
I come to this conclusion based not on the Trustee’s evidence, which was of limited value to the Tribunal in performing its task, but on the evidence tendered by the Commissioner. It is of course the Commissioner’s decision, not the Trustee’s decision, which is the reviewable decision before the Tribunal.
It may be asserted that while the Trustee played his cards close to his chest, so too did Mr Moltoni. The latter had the opportunity in his evidence to make the very opaque circumstances around the arrangements leading to the December 2006 payment less opaque. However, he offered no plausible explanation for those arrangements. The Tribunal put to him that the evidence had thrown up at least a prima facie doubt about the extent that he could have been involved in the pre-payment transactions without knowing what became of that payment. Mr Moltoni agreed with that assessment of the state of the evidence.
Mr Moltoni struck the Tribunal as a painstaking and methodical man, well-organised and with a generally very good memory of events that occurred many years ago in this connection. He conducted his application before the Tribunal with an assuredness and command of the arguments not usually associated with self represented litigants. It seems to the Tribunal quite implausible that a man of these qualities, exercising effective control over the payment of an extremely large sum of money, could simply have “lost sight” of the money at the final stage of the transaction.
Although the Trustee’s reasons for suspecting that Mr Moltoni’s estate had benefited from the payment were not disclosed, he did inform the Tribunal that Mr Moltoni had been uncooperative with his investigations to date, providing him with selective information so as to hinder his inquiries. I take that opinion into account in determining that the Trustee’s investigations should be permitted to continue under the protection of the DPO.
If Mr Moltoni leaves Australia, he passes out of the direct control of both the Trustee and the Federal Court. In such circumstances, the Commissioner submitted, Mr Moltoni’s incentive to attend to the requirements of either authority will be diminished. It would also be costly to pursue him if he chose to be unhelpful once overseas. It was suggested that if the Tribunal can’t be satisfied that Mr Moltoni has been wholly candid about his affairs, then it cannot be satisfied that he will return to Australia if requested by the Trustee. The Commissioner also observed that there could be no guarantee that he will stay in the UK; it was possible that, once offshore, he could go to a place beyond the reach of the Trustee altogether. Although there is no evidence that Mr Moltoni contemplates such a course of action, it would by the same token be imprudent to ignore that possibility, given that the hypothesis on which the Commissioner is working, based on the available evidence, is that Mr Moltoni has a substantial nest egg secreted somewhere overseas and might place himself beyond the Trustee’s reach so as to enjoy it unhindered.
Mr Moltoni noted that he travelled overseas pursuant to a DAC between November 2017 and March 2018, when he returned voluntarily to Australia. He submitted that if he had intended to abscond he could have done so then, but did not. Previous cooperation with the Commissioner weighs in favour of waiving the DPO now but, given the lack of transparency as to the fate of the US$21 million, it is impossible to say with precision what factors might influence his behaviour should he now be permitted to travel.
In Walsh the Tribunal revoked the taxpayer’s DPO because it was not satisfied that its continuation would assist the trustee’s investigations. It also took into account the hardship caused to the taxpayer by the DPO. In the present proceedings, I accept that there is hardship caused to Mr Moltoni and his family by the continuation of the DPO. That hardship is significant. However, I am also persuaded that the Trustee’s investigations do require some protection, protection which would be afforded by the continuation of the DPO for the time being. On balance, the very considerable sum of money which is being pursued by the Trustee, and the assistance which the DPO may provide in that pursuit, warrants its continuation, despite the personal cost to Mr Moltoni.
I do accept, however, that the DPO becomes more oppressive the longer it remains in place, and at some point in the future, if investigations into the taxpayer’s affairs after a reasonable period have borne no fruit, it may be appropriate to lift it.
I will deal with one further argument put forward by Mr Moltoni. He submitted that the Tribunal should have regard to Australia’s obligations under Article 12(2) of the International Covenant on Civil and Political Rights, which states Everyone shall be free to leave any country, including his own. The High Court in Dietrich v The Queen (1992) 177 CLR 292 made plain that Australia’s international agreements have no direct legal effect on domestic law unless and until the agreements’ provisions are incorporated into that domestic law. Those agreements may be used as an aid to interpretation if Parliament’s intention is ambiguous (Mason CJ and McHugh J at 305-6); see also Kioa v West (1985) 159 CLR 550 per Gibbs CJ at 570-1.
It is not clear in what way, if at all, Article 12(2) of the ICCPR has been incorporated into Australian law. In any case, the power of the Commissioner under the TAA to restrict a taxpayer’s right to travel overseas does not appear at all ambiguous, and so the article appears to have little value in the Tribunal’s deliberations.
CONCLUSION
The reviewable decision of the Commissioner dated 1 July 2019 is affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.
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Associate
Dated: 10 February 2020
Date(s) of hearing: 4-5 December 2019 Representative for Mr Moltoni: In person Counsel for the Commissioner: M O’Meara SC Solicitors for the Commissioner: Australian Government Solicitor
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