Parker v Vivian

In the Federal Court of Australia, Michael Parker, as the director of Ivyside Pty Ltd, sought to review a decision made by the respondent, Vivian, who was acting on behalf of the Australian Taxation Office (ATO). The decision in question involved the disallowance of GST input tax credits claimed by Ivyside, which led to an amended assessment and penalties. Parker argued that the issuance of the payment demand by Vivian was oppressive and in breach of the Taxpayer’s Charter and the ATO's Receivables Policy. Vivian countered that the demand was a non-statutory action taken within the scope of his duties as a delegate of the Commissioner of Taxation.

The primary legal issue before the court was whether the decision to issue a payment demand by Vivian constituted a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The court needed to determine if the issuance of the demand fell within the scope of administrative decisions that could be reviewed or if it was an exercise of non-statutory powers not subject to judicial review. The court also had to consider whether the demand lacked the necessary finality or determinative quality to be considered a reviewable decision.

The court found that the decision to issue a payment demand did not constitute a reviewable decision under the ADJR Act. The reasoning was based on the principle that a decision must be final and operative to be reviewable. The demand for payment did not determine the ultimate liability for tax or penalties, as those were imposed by the operation of the relevant statutes. The court relied on precedents such as Bond v Australian Broadcasting Tribunal (1988) 166 CLR 294, which emphasized that a decision must be final or determinative to be reviewable, and Century Yuasa Batteries Pty Ltd v Commissioner of Taxation (1997) 73 FCR 528, which held that a demand for payment is not a substantive determination and therefore not reviewable. The court concluded that the demand was a procedural step in the collection process, not a substantive administrative decision.

Consequently, the court upheld the objection to the competency of the review application, dismissed the claim, and ordered that the applicant pay the respondent's costs.