Smorgon v ANZ Banking Group Ltd [1976] HCA 53

Smorgon v ANZ Banking Group Ltd [1976] HCA 53

A notice under s. 264(1)(b) of the Income Tax Assessment Act 1936 cannot validly require a corporation to attend and give evidence, as that power is confined to natural persons; however, a corporation may be required to produce documents in its custody or control related to income or assessment. The contractual duty of confidentiality owed by a bank to its customers does not override the statutory power of the Commissioner to obtain such documents. Notices must specify with reasonable particularity the documents to be produced, not merely use statutory language. Failure to reference penalties or the precise statutory paragraph, and complaints of unreasonableness or oppression, did not...

Jurisdiction
Australia
Procedural Posture
Civil / Trial Judgment
Outcome
Declaration made that the notice to the Bank was invalid under s. 264; no injunctions granted; issues as to costs to be determined after further submissions.
Legal Topics
["commissioner's Powers Under S. 264 Income Tax Assessment Act 1936" 'production of Documents' 'banker Customer Confidentiality' 'validity of Statutory Notices' 'application of Statutory Powers to Corporations']
['taxation Law' 'administrative Law' 'banking Law'] ["commissioner's Powers Under S. 264 Income Tax Assessment Act 1936" 'production of Documents' 'banker Customer Confidentiality' 'validity of Statutory Notices' 'application of Statutory Powers to Corporations']

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Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 ['Whether s. 264(1)(b) of the Income Tax Assessment Act 1936 empowers the Commissioner to require a corporation to attend and give evidence' 'Whether s. 264(1)(b) notice must satisfy specificity requirements in describing documents to be produced' "Whether banker's duty of confidentiality restrains compliance with statutory notice" 'Whether the notices were unreasonable or oppressive' 'Whether authorisation of Mr. Peters was valid']

Ratio Decidendi

A notice under s. 264(1)(b) of the Income Tax Assessment Act 1936 cannot validly require a corporation to attend and give evidence, as that power is confined to natural persons; however, a corporation may be required to produce documents in its custody or control related to income or assessment. The contractual duty of confidentiality owed by a bank to its customers does not override the statutory power of the Commissioner to obtain such documents. Notices must specify with reasonable particularity the documents to be produced, not merely use statutory language. Failure to reference penalties or the precise statutory paragraph, and complaints of unreasonableness or oppression, did not...

Court Disposition

Declaration made that the notice to the Bank was invalid under s. 264; no injunctions granted; issues as to costs to be determined after further submissions.

Orders

  • ['In action no. 76 of 1976: No declarations or injunctions for plaintiffs; on counterclaim, declaration that the notice to the Bank dated 24 August 1976 was invalid under s. 264.' 'No declaration as to notice to Mr. Smorgon.' 'In action no. 77 of 1976: Injunctions refused; declaration made that the notice to the...