Younan, Adison v The Queen - [2010] NSWDC 168

NEW SOUTH WALES DISTRICT COURT

CITATION:
YOUNAN, Adison v R [2010] NSWDC 168

FILE NUMBER(S):
2009/117172

HEARING DATE(S):

JUDGMENT DATE:
13 April 2010

PARTIES:
Regina
Adison Younan

JUDGMENT OF:
Cogswell SC DCJ

COUNSEL:
Mr Young for the appellant
Ms Beckett for the respondent

SOLICITORS:

CATCHWORDS:
CRIMINAL LAW
conviction appeal
failure to file personal tax return
appellant a tax consultant
submission that ATO cannot prove beyond reasonable doubt that a tax notice pursuant to s 162 Income Tax Assessment Act 1936 was posted and served
circumstantial evidence only showing notice sent
ATO's computer system

LEGISLATION CITED:
Taxation Administration Act 1953 s 8C(1)(a)
Income Tax Assessment Act 1936 s 162
Crimes (Appeal and Review) Act 2001

CASES CITED:
Mahmood v Western Australia (2008) 232 CLR 397
R v Louizos [2009] NSWCCA 71

TEXTS CITED:

DECISION:
The conviction is set aside

JUDGMENT:

JUDGMENT

Adison Younan is a tax consultant. He is a qualified chartered accountant and solicitor. He presently works for the National Australia Bank, placed in its subsidiary the MLC Limited. In the recent past he was employed by Greenwoods & Freehills, a specialised tax advisory firm, connected with the law firm Freehills.

Despite these qualifications, professional employment and responsibilities, he is being prosecuted by the Australian Tax Office for failing to file one of his personal tax returns. When it was eventually filed, it resulted in a refund to Mr Younan.

The ATO’s case depends on proving that it posted and served a final notice on Mr Younan, requiring him to file his tax return. Mr Younan not only says he never received the tax notice, he also says that when the ATO’s case is examined closely it cannot satisfy me beyond reasonable doubt that the notice was actually posted and served.

He has an alternative argument. He says that even if I am satisfied that the notice was posted and served, it was in fact sent to the wrong address, so that it was ineffective as a basis for the prosecution.

This case comes before me as an appeal. It started when Mr Younan was charged with an offence against section 8C(1)(a) of the Taxation Administration Act 1953. That is an offence which is described as failing, when and as required, under a taxation law, to furnish any information to the Tax Commissioner.

In this case the allegation is that Mr Younan failed to furnish his income tax return for 2007, despite being required to by a final notice which was issued under section 172 of the Income Tax Assessment Act 1936. The particular allegation was that a notice was issued on 2 May 2008 which required him to lodge with the Commissioner of Taxation, on or before 30 May 2008, the tax return for 2007. The ATO claims that by 30 May he had not lodged that document so that he committed the offence on or about 31 May 2008.

The ATO’s case relies on legal assumptions and circumstantial evidence. To state it in those terms gives the impression…

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.

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Details

Case: [2010] NSWDC 168
Decision Date: 13 April 2010

CaseChat Overview and Summary

The appellant, a tax consultant, had been convicted for failing to file a personal tax return. The conviction was appealed on the basis that the Australian Taxation Office (ATO) could not demonstrate beyond reasonable doubt that a tax notice under section 162 of the Income Tax Assessment Act 1936 was both posted and served. The key issue before the court was whether the evidence presented by the ATO, which only established that a notice was sent, was sufficient to prove the notice was received by the appellant. The appellant argued that the ATO's reliance on its computer system was insufficient to meet the required standard of proof.

The court examined the evidence presented by the ATO, which included an email from the ATO's computer system indicating that a notice had been sent. The court noted that while the ATO's system could accurately record the sending of a notice, it did not provide evidence of the notice being received. The court further considered whether the evidence could support a reasonable doubt as to whether the notice was received. The court concluded that the evidence was circumstantial and did not meet the high standard of proof required in criminal cases. Consequently, the conviction was set aside due to the ATO's inability to prove beyond reasonable doubt that the tax notice was both posted and served.

Orders

Orders of the court

The conviction is set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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