Plantoy Pty Ltd and Commissioner of Taxation
[2012] AATA 734
•15 October 2012
[2012] AATA 734
Division TAXATION APPEALS DIVISION File Number
2009/2235
Re
Plantoy Pty Ltd
APPLICANT
And
Commissioner of Taxation
RESPONDENT
REASONS FOR DECISION IN INTERIM APPLICATION
Tribunal Senior Member Bernard J McCabe
Date 15 October 2012 Date of written reasons 24 October 2012 Place Brisbane 1. The Tribunal does not give leave to further amend the grounds of objection or make further directions in response to the interim application save for the following directions:
1.1 The Respondent shall lodge in the Tribunal and serve on the Applicant any further material by 19 October 2012.
2. The application for an adjournment of the final hearing beginning 5 November 2012 is refused.
...............................[Sgd].........................................
Senior Member Bernard J McCabe
REASONS FOR DECISION
Senior Member Bernard J McCabe
24 October 2012
The final hearing in this matter has been set down for 5 days beginning on 5 November 2012. The taxpayer made what has become known as the interim application in which he has raised a number of issues. I have previously ruled in relation to some of those issues: for example, I declined to make a direction that the Commissioner comply with the model litigant rules. The taxpayer has pressed for a further amendment to the grounds of objection and other directions. It has also asked for an adjournment of the final hearing in light of the pressures on Mr Smits, the taxpayer’s director and controlling mind who has carriage of the matter.
The interim application came on for hearing on 15 October. It was anticipated the application would take up to two days. Mr Smits began by giving me a brief history of the real estate transaction which lies at the heart of this dispute. Mr Smits has repeatedly expressed the view that the Commissioner did not understand what went on. I confess I did not have a clear understanding of Mr Smits’s case after reading the file, so his explanation on 15 October was helpful.
Mr Smits has repeatedly claimed he is being oppressed because he does not know the case he has to meet. He apparently fears the Commissioner will ambush with him evidence that is not relevant to the dispute as he described it. He wanted leave to introduce evidence of how the Commissioner has dealt with cases raising similar issues in the past. I understand he wished to make a point about consistency.
When Mr Smits explained the taxpayer’s theory of the case, it was immediately apparent that it would be inappropriate to make any further directions in response to the interim application. Mr Smits outlined the factual basis for his argument, and the legal conclusions he said should be reached. Mr Lumb, for the Commissioner, indicated the Commissioner wanted to cross-examine Mr Smits about some of the factual claims that were made. It seems the Commissioner doubts aspects of the story. Mr Lumb also indicated there would be an argument over the law. But that is what hearings are for. As I pointed out to Mr Smits, I expected he would tell the applicant’s story at the hearing and refer to supporting evidence. The Commissioner would test that story in cross-examination. There might then be an argument whether I should believe the story I was told, and an argument over how the law should apply. It was up to the applicant to justify the claim he makes; if I disbelieved the story, or disagreed about the law, then the applicant would presumably lose. If I accepted the story and agreed with Mr Smits’s legal analysis, the applicant may succeed. The sooner that can be done at a hearing, the better.
I did not give leave to further amend the grounds of objection. It seemed to me that the dispute was already adequately identified in the material before me. To Mr Lumb’s obvious discomfort, I indicated I would be prepared to revisit that question if something came out at the hearing which indicated an amendment should have been given. I do not anticipate that would occur given the state of the material, and I am conscious that it might be dreadfully inconvenient if that were to be necessary. But there is lots of paperwork, and Mr Smits is facing some difficulty in managing the case on behalf of the applicant given competing demands on his time. In view of the lengthy history of the proceedings, it seems to me the best outcome is to bring on the hearing and deal with any eventuality.
Mr Smits also asked for a further adjournment given his commitments in other legal proceedings. There have been several adjournments in these proceedings already, although at least one of those adjournments came at the Tribunal’s request. Given the pressures on the Tribunal’s list, however, an adjournment of the proceedings set down for November would mean the matter could not be brought on again before March next year. That is unsatisfactory. I accept Mr Smits is balancing competing demands for his time, but that is unavoidable. I do not accept it would be unfair for the applicant’s case to proceed at the appointed time. To that end, I gave directions with respect to the filing of additional material and indicated I would see the parties at the hearing.
I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ...............................[Sgd].....................................
Associate
Dated 24 October 2012
Date of hearing 15 October 2012 Representative for the Applicant Mr Smits Counsel for the Respondent Mr Lumb Solicitors for the Respondent Australian Government Solicitor
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