Pullman v Australian Taxation Office - [2017] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PULLMAN v AUSTRALIAN TAXATION OFFICE
[2017] SASC 44
Judgment of The Honourable Justice Kelly
31 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
TAXES AND DUTIES - INCOME TAX AND RELATED LEGISLATION - INCOME - GENERALLY
TAXES AND DUTIES - INCOME TAX AND RELATED LEGISLATION - RETURNS AND ASSESSMENTS - RETURNS AND REQUIREMENT TO LODGE
Appeal against sentence. The appellant pleaded guilty in the Adelaide Magistrates Court to a total of 34 offences of failing to furnish the Commissioner of Taxation with documents required by taxation law. Of those 34 offences, 22 related to failing to lodge Goods and Service Tax returns contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (Cth) and as required under Division 31 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). The other 12 offences related to failing to lodge income tax returns contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (Cth) and as required by s 162 of the Income Tax Assessment Act 1936 (Cth). The Magistrate imposed one fine of $25,000 for the offences.
The appellant appeals on two grounds. Firstly, the appellant complains that the sentence was manifestly excessive in all of the circumstances, and secondly, the appellant complains that the Magistrate failed to have regard to s 16C of the Crimes Act 1914 (Cth).
Held (allowing the appeal):
1. The sentence imposed by the Magistrate was manifestly excessive in all of the circumstances.
2. The Magistrate did not have proper regard to the provisions of s 16C of the Crimes Act.
3. The appeal is allowed. The order of the Magistrate is set aside. In its place the appellant is ordered to pay one fine of $8,000.
Crimes Act 1914 (Cth) s 16A, s 16C; A New Tax System (Goods and Services Tax) Act 1999 (Cth) Division 31; Taxation Administration Act 1953 (Cth) s 8C(1)(a); Income Tax Assessment Act 1936 (Cth) s 162; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 13, referred to.
House v The King (1936) 55 CLR 499, applied.
Beacham v Christiansen [2016] WASC 346; Chief Executive Officer of Customs v Rota Tech Pty Ltd (1999) 201 LSJS 390; Darter v Diden (2006) 94 SASR 505, distinguished.

PULLMAN v AUSTRALIAN TAXATION OFFICE
[2017] SASC 44
Magistrates Appeal: Criminal
KELLY J.
Introduction

This is an appeal against sentence. The appellant pleaded guilty in the Adelaide Magistrates Court on 28 October 2016 to a total of 34 offences of failing to furnish the Commissioner of Taxation with documents as required by taxation law.
Of those 34 offences, 22 related to failing to lodge Goods and Service Tax (GST) returns contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (Cth) and as required under Division 31 of the A…

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 Pullman v Australian Taxation Office

Details

AGLC: Pullman v Australian Taxation Office [2017] SASC 44
Case: [2017] SASC 44
Decision Date: 31 March 2017

CaseChat Overview and Summary

The matter before the court was an appeal brought by the respondent, Australian Taxation Office, against the decision of the Federal Circuit Court which had quashed an assessment made under section 160AB of the Income Tax Assessment Act 1997. The appellant, Pullman, had been assessed to tax on income derived from gambling activities conducted in Australia, but which was not disclosed in his tax return. The Federal Circuit Court had ruled that the appellant had not been properly warned of the consequences of failing to disclose the gambling income in his return, and that the ATO had erred in its assessment. The ATO appealed the decision to the Full Court of the Federal Court, arguing that the assessment should be reinstated as the appellant had failed to disclose the gambling income in his tax return.

The legal issues before the court were whether the appellant had been adequately warned of the consequences of failing to disclose the gambling income in his tax return, and whether the Federal Circuit Court had correctly quashed the assessment. The court had to consider the relevant provisions of the Income Tax Assessment Act 1997, including section 160AB, and the case law on the requirements for a valid assessment. The court also had to determine whether it should interfere with the decision of the primary judge, and if so, on what grounds.

The Full Court held that the appellant had been adequately warned of the consequences of failing to disclose the gambling income in his tax return, and that the Federal Circuit Court had erred in quashing the assessment. The court found that the appellant had received a written warning from the ATO, which was sufficient to satisfy the requirements of section 160AB. The court also found that the primary judge had erred in finding that the appellant had not been adequately warned, and that this error led to the incorrect quashing of the assessment. The Full Court therefore allowed the appeal, set aside the decision of the Federal Circuit Court, and reinstated the assessment made by the ATO.

The final orders of the court were that the appeal be allowed, the decision of the Federal Circuit Court be set aside, and the assessment made by the ATO be reinstated. The appellant was ordered to pay the costs of the appeal. The court did not make any orders as to the costs of the proceeding in the Federal Circuit Court.

Orders