MW McIntosh Pty Ltd & Anor v Commissioner of Taxation

[2010] HCATrans 13

[2010] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S205 of 2009

B e t w e e n -

M W McINTOSH PTY LTD ACN 000 014 915

First Applicant

INDIOC PTY LTD ACN 003 934 692

Second Applicant

and

COMMISSIONER OF TAXATION

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2010, AT 11.08 AM

Copyright in the High Court of Australia

MR A.H. SLATER, QC:   If your Honour pleases, I appear with my friend, MR I.S. YOUNG, for the applicants.  (instructed by Robert Richards & Associates)

MS M.A. PERRY, QC:   If the Court pleases, I appear with MR M.J. O’MEARA, for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   I think you have a summons?

MR SLATER:   We do, your Honour.  May I briefly explain the basis of the summons?  If I could take your Honours to page 46 of the application book where the legislation is set out, these proceedings were instituted as an application to review a decision made under section 388-55 in Schedule 1 of the Taxation Administration Act, the text of which is set out at the top of page 47.  The power in that paragraph is relevant because of its invocation by section 703-50 which appears at about line 20.

Before I go to that legislation I should tell your Honours that proceedings were instituted as an application for judicial review of a decision under section 388-55 but they were substantively heard as an application for a declaration as to the operation of that section in the facts of the case.  Section 703-50 provides for:

(1)A company may make a choice in the *approved form given to the Commissioner…

…

(3)The period for giving the choice to the Commissioner –

to be one which:

(b)ends at the end of:

(i)the day on which the company gives the Commissioner its *income tax return -

Section 388-50 at about line 31 on page 46 identifies what is an “approved form”.  The application was for a decision to defer time in terms of section 388-55(1).  On Wednesday of this week the Commonwealth introduced into Federal Parliament a Bill altering section 703-50.

GUMMOW J:   This the Tax Laws Amendment (2010 Measures No 1) Bill?

MR SLATER:   Yes, your Honour, a portion of the relevant extracts which is ‑ ‑ ‑

GUMMOW J:   Annexed to Mr Richards’ affidavit of 11 February?

MR SLATER:   Yes.  If your Honour has that convenient, Part 18 in exhibit RIR1 in item 155 your Honours will see alters section 703-50 to remove the reference to the approved form and substitute, simply, a requirement that the choice be made “in writing”.  Your Honours, if that legislation is passed and, at this stage, of course, it is only a Bill introduced which has been read for a second time, then the decision which was the matter before the Federal Court and would, if leave were to be granted, be the matter before this Court, would cease to be a decision which can be, or retrospectively could have been, made by the Commissioner.

GUMMOW J:   Is there some indication of retrospective operation?

MR SLATER:   Yes, your Honour.  At the end of Part 18 item 193 on the page numbered at the bottom 102:

The amendments made by this Part apply on and after 1 July 2002.

So that, in effect, your Honours, if this Bill becomes law our course of action is retrospectively extinguished.  The summons seeks to have the application stood over pending the passage of the legislation or its refusal by either the House of Representatives or the Senate.

GUMMOW J:   Thank you.  Is this summons opposed?

MS PERRY:   No, it is not, your Honour, as we indicated in correspondence with the Registrar.

GUMMOW J:   Upon the summons filed 11 February 2010 we make order 2 which has the effect of adjourning the application to a further date.

MR SLATER:   If the Court please.

GUMMOW J:   The costs of today and the summons will be costs of the special leave application as it is eventually disposed of.

MR SLATER:   Yes, your Honour.

AT 11.13 AM THE MATTER WAS CONCLUDED