Stuart, Edward Geoffrey v Maloney, Francis James

[1996] FCA 811

CATCHWORDS

INCOME TAX  -  assessment  -  "taxation objection", "objection decision".

Administrative Decisions (Judicial Review) Act 1977 ss 5, 6; paras (e), (ga) of Schedule 1
Taxation Administration Act 1953 ss 14ZL, 14ZY

EDWARD GEOFFREY STUART v FRANCIS JAMES MALONEY AND COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
WAG31 OF 1996

NORTHROP, LEE, FINN JJ
PERTH
13 SEPTEMBER 1996

IN THE FEDERAL COURT )
OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG31 OF 1996

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:           EDWARD GEOFFREY STUART

Appellant

and

FRANCIS JAMES MALONEY

First Respondent

and

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

MINUTE OF ORDER

THE COURT:     NORTHROP, LEE, FINN JJ

DATE OF ORDER:  13 SEPTEMBER 1996

WHERE MADE:     PERTH

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )
OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG31 OF 1996

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:           EDWARD GEOFFREY STUART

Appellant

and

FRANCIS JAMES MALONEY

First Respondent

and

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

CORAM:    NORTHROP, LEE, FINN JJ
DATE :    13 SEPTEMBER 1996
PLACE:    PERTH

REASONS FOR JUDGMENT

THE COURT:

In this matter the appellant appeals against an order made by a Judge of this Court (Carr J) that the appellant's application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") be dismissed.

The order of review was sought in respect of a "decision" made by the first respondent ("Mr Maloney") as delegate of the second respondent ("the Commissioner").  The decision was said to be recorded in a letter from Mr Maloney to the appellant which read as follows:

"1.It is considered that the nil tax advices dated 13 September 1995 are not notices of assessment and you have no right of objection against them.

2.Even if the advices were considered to be notices of assessment, the 'other amounts payable' would not form part of the assessment."

The salient facts are set out in the several reasons of this Court delivered in appeal no. WAG30 of 1996 and published concurrently with these reasons.  The relevant facts recited in those reasons are to be treated as incorporated herein.

In appeal no. WAG30 of 1996 it has been determined that none of the purported objections lodged by the appellant on 10 November 1995 was a "taxation objection" within the meaning of s14ZL of the Taxation Administration Act 1953 ("the Act"). Therefore, the Commissioner could not make an "objection decision" under s14ZY of the Act in respect of any matter raised by the appellant in his correspondence with the Commissioner.

No decision having been made, nor able to be made, under the Act, s5 of the ADJR Act has no application. The question whether conduct was engaged in for the purpose of making such a decision under the Act, being conduct to which s6 of the ADJR Act applies, does not arise. The Commissioner submitted that an "objection decision" made under the Act was a decision included in the classes of decision specified in para(e) or (ga) of Schedule 1 of the ADJR Act and was not a decision to which the ADJR Act applied in any event.  It is unnecessary to determine the issue raised in that submission.

The appeal must be dismissed with costs.

I certify that this and the preceding two  pages are a true copy of the Reasons for Judgment of the Court.

Associate:
              Date:

APPEARANCES

Appellant appeared in person.

Counsel for the First
and Second Respondents:  L.B. Price

Solicitor for the First
and Second Respondents:  Australian Government Solicitor

Date of Hearing  :  17 July 1996
Date of Judgment :  13 September 1996