Rothnie v Deputy Commissioner of Taxation

[2011] FCA 1479

FEDERAL COURT OF AUSTRALIA

Rothnie v Deputy Commissioner of Taxation [2011] FCA 1479

Citation:		Rothnie v Deputy Commissioner of Taxation [2011] FCA 1479
Parties:		MARGARET OLIVE ROTHNIE v DEPUTY COMMISSIONER OF TAXATION
File number:		WAD 440 of 2011
Judge:		SIOPIS J
Date of judgment:		1 December 2011
Date of hearing:	1 December 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr NW Marsh
Solicitor for the Applicant:	Julienne Penny & Associates
Counsel for the Respondent:	Ms F Vernon
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 440 of 2011

BETWEEN:	MARGARET OLIVE ROTHNIE Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	1 DECEMBER 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application is summarily dismissed pursuant to Rule 26.01 of the Federal Court Rules 2011 and section 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.The time for service of the respondent’s interlocutory application pursuant to Rule 26.03 of the Federal Court Rules 2011 is abridged.

3.The applicant is to pay the respondent’s costs of the proceeding and the application.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 440 of 2011

BETWEEN:	MARGARET OLIVE ROTHNIE Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	SIOPIS J
DATE:	1 DECEMBER 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 3 November 2011, the applicant, whom I shall refer to as the taxpayer, filed a review application in the Court. The taxpayer’s review application stated that it was brought pursuant to s 39B of the Judiciary Act 1903 (Cth), and sought the following relief:

   1.The Superannuation Guarantee Default Assessments issued on 28 March 2007 and notices of additional Superannuation Guarantee Charges issued 28 June 2007 be reviewed.

2. The Deputy Commissioner made the assessments, impugned by the taxpayer, on a default basis, after the Deputy Commissioner carried out an audit of a business which was conducted by the taxpayer and her late husband.  The Deputy Commissioner has also commenced a proceeding in the District Court of Western Australia against the taxpayer, claiming the sum of $374,911.34 in respect of the tax debt arising from these assessments.  Among the interlocutory relief which the taxpayer claims in her application, is a stay of the execution of any judgment in the District Court, pending the review of the assessments.

3. On 29 November 2011, the Deputy Commissioner brought an application for the summary dismissal of the taxpayer’s application, under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

4. The Deputy Commissioner contends that the taxpayer’s application is misconceived and, that there is, accordingly, no reasonable prospect of her application succeeding. This is because, says the Deputy Commissioner, relief under s 39B of the Judiciary Act is not available in relation to a merits review of the assessments of the nature which the taxpayer, by her application, seeks.

5. In my view, the Deputy Commissioner’s submission is to be accepted. Relief under s 39B of the Judiciary Act, founded as it is on jurisdictional error, is not available in respect of the review of the assessments sought by the taxpayer.  Part IVC of the Taxation Administration Act 1953 (Cth) provides the statutory basis on which the taxpayer is entitled to seek a review of the assessments of the nature that she seeks.  In the case of Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146, Gummow, Hayne, Heydon and Crennan JJ at [24] observed:

   Section 175 must be read with ss 175A and 177(1).  If that be done, the result is that the validity of an assessment is not affected by failure to comply with any provision of the Act, but a dissatisfied taxpayer may object to the assessment in the manner set out in Pt IVC of the Administration Act; in review or appeal proceeding under Pt IVC the amount and all the particulars of the assessment may be challenged by the taxpayer but with the burden of proof provided in ss 14ZZK and 14ZZO of the Administration Act.  Where s 175 applies, errors in the process of assessment do not go to jurisdiction and so do not attract the remedy of a constitutional writ under s 75(v) of the Constitution or under s 39B of the Judiciary Act.

6. In my view, these observations apply in this case. Accordingly, there is no reasonable prospect of the taxpayer’s application for review under s 39B of Judicary Act succeeding. It follows that the taxpayer’s application is dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

7. Finally, I note that counsel representing the taxpayer, did not make submissions in opposition to the making of the order sought by the Deputy Commissioner.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       19 December 2011