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Piccolo and McVeigh

Piccolo and McVeigh

Case [2001] AATA 623 2 July 2001

Contribution Assessment

Reasonable Remuneration

Contribution Assessment Periods

Insolvency Law

Bankruptcy Law

Type to search within this case.

CATCHWORDS – BANKRUPTCY – Income contribution assessment periods – estoppel – whether contribution assessment notices may be issued in relation to each period – amount of "reasonable remuneration" received – whether applicant controlling mind of company – "income" – whether applicant's wife received money as a result of work done or services performed by applicant – fringe benefits tax – identification of benefits and appropriate legislation – decision set aside.

Bankruptcy Act 1966 – ss 77C, 116, 139K, 139L, 139M, 139P, 139Q, 139S, 139U, 139V, 139W, 139X, 139Y,
Bankruptcy Legislation Amendment Act 1996
Bankruptcy Regulation – Reg 4, 6.12
Companies (Vic) Code – s 542
Equal Opportunity Act 1984 (WA)
Fringe Benefits Tax Assessment Act 1986 – ss 7, 9,
Income Tax Assessment Act 1936 – s 26
Savings Accounts (Consequential Amendments) Act 1997

Australian Securities Commission v Kavanagh and Others (1993) 11 ACSR 148
Challen v Bendeich [1999] FCA 845
Comcare Australia v Hill (1999) 56 ALD 487; [1999] FCA 488
Federal Commissioner of Taxation v Cooke and Sherden (1978) 23 ALR 229; (1978) 78 ATC 4685; (1978) 9 ATR 310
Formosa v Department of Social Security (1988) 46 FCR 117; (1988) 81 ALR 687; (1988) 15 ALD 657; (1988) 9 AAR 260
IW v City of Perth and Others (1997) 191 CLR 1; (1997) 94 LGERA 224; (1997) 146 ALR 696; (1997) 71 ALJR 943
Macchia v Nilant [2001] FCA 7 (unreported, French J, 12 January, 2001)
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic 91990) 21 FCR 193; (1990) 92 ALR 93
Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117
Re Maria Esequiel Faisca and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (AAT 7973, 1 May, 1992)
Re Nelson and Inspector-General of Bankruptcy (1994) 35 ALD 113
Stevenson and Inspector-General in Bankruptcy (1996) 45 ALD 775
The Commonwealth v Verwayen (1990) 170 CLR 394; (1990) 95 ALR 321; (1990) 64 ALJR 540; [1990] ANZConvR 600; (1990) Aust TortsR 81-036
Waltons Stores (Interstate) Ltd v Maher (1988) 146 CLR 387; (1988) 76 ALR 513; (1988) 62 ALJR 110; [1988] ANZ ConvR 98; (1988) NSW ConvR 55-390; (1988) Q ConvR 54-284; (1988) V ConvR 54-309

DECISION AND REASONS FOR DECISION [2001] AATA 623

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V1999/1397
GENERAL ADMINISTRATIVE DIVISION      )

Re JOHN PETER PICCOLO

Applicant

And DEAN ROYSTON McVEIGH

Respondent

Tribunal: Miss S A Forgie (Deputy President)

Date: 2 July, 2001

Place: Melbourne

Decision:

The Tribunal:

1.sets aside each of the decisions of the respondent dated 4 September, 1999 to issue contribution assessment notices in relation to the contribution assessment periods:

(1)9 May, 1996 to 8 May, 1997 ("CAP 1");

(2)9 May, 1997 to 8 May, 1998 ("CAP 2");

(3)9 May, 1998 to 8 May, 1999 ("CAP 3"); and

(4)9 May, 1999 to 8 May, 2000 ("CAP 4");

2.substitutes for the decision in relation to CAP 2 a decision that a fresh contribution assessment notice may not be issued; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Piccolo and McVeigh

Details

AGLC: Piccolo and McVeigh [2001] AATA 623
Case: [2001] AATA 623
Decision Date: 2 July 2001

CaseChat Overview and Summary

In this case, Mr John Peter Piccolo applied for a review of four decisions of Mr Dean Royston McVeigh, who is a trustee in bankruptcy under the Bankruptcy Act 1966 and is the trustee of Mr Piccolo's estate. The decisions were dated 4 September, 1999 and related to income contribution assessments in respect of various periods between 9 May, 1996 and 8 May, 2000. The Tribunal set aside each of the decisions to issue contribution assessment notices and remitted the decisions to the respondent with directions to recalculate the applicant's contribution. The Tribunal found that Mr McVeigh is estopped from issuing fresh contribution assessment notices. The Tribunal also found that Mr McVeigh may issue a contribution assessment notice in relation to each contribution assessment period. The Tribunal found that Mr Piccolo has received reasonable remuneration from his employment with Poole Levy and Appel Pty Ltd, which is to be assessed at $35,000 per annum. The Tribunal found that an amount of money has been received by a person other than Mr Piccolo as a result of work he has done or services he has rendered. The Tribunal found that the value of the Mercedes Benz 300E is to be assessed according to the Fringe Benefits Tax Assessment Act 1986 as modified by the Bankruptcy Act 1966 and the Bankruptcy Regulations, and that the Mercedes Benz 500S is not to be taken into account in assessing Mr Piccolo's contribution.

Orders