DEPUTY COMMISSIONER OF TAXATION v DICK [2007] NSWCA 190

DEPUTY COMMISSIONER OF TAXATION v DICK [2007] NSWCA 190

Section 1318 of the Corporations Act 2001 cannot apply to relieve a director from liability to a penalty imposed under s222AOC of the Income Tax Assessment Act 1936, as Divisions 8 and 9 of the ITAA constitute a complete and exclusive code for the imposition and defences to such liability; the provisions are inconsistent and irreconcilable with the general relief available in s1318, so the specific tax penalty regime prevails.

Parties
Appellant/cross Opponent: DEPUTY COMMISSIONER OF TAXATION; Respondent/cross Claimant: George Dow Taylor DICK
Jurisdiction
Australia
Judgment Date
03 August 2007
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed; Cross-appeal dismissed
Legal Topics
Director's Statutory Liability for Company Tax Debts, Relief From Liability Under Corporations Act S1318, PAYG (pay as You Go) Penalty Regime, General Vs Specific Statutory Regimes, Statutory Construction and Conflict Between Acts
Corporations Law Statutory Interpretation Taxation Law Director's Statutory Liability for Company Tax Debts Relief From Liability Under Corporations Act S1318 PAYG (pay as You Go) Penalty Regime General Vs Specific Statutory Regimes Statutory Construction and Conflict Between Acts

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Parties

DEPUTY COMMISSIONER OF TAXATION

Appellant/cross Opponent

George Dow Taylor DICK

Respondent/cross Claimant

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Does s1318 of the Corporations Act 2001 empower the court to relieve a director from liability to penalty under s222AOC of the Income Tax Assessment Act 1936?
  2. 2 Are Divisions 8 and 9 of the ITAA a complete and exclusive code that excludes the application of s1318?
  3. 3 Is there a conflict or implied contradiction between the PAYG penalty regime under the ITAA and the general relief provision in the Corporations Act?

Ratio Decidendi

Section 1318 of the Corporations Act 2001 cannot apply to relieve a director from liability to a penalty imposed under s222AOC of the Income Tax Assessment Act 1936, as Divisions 8 and 9 of the ITAA constitute a complete and exclusive code for the imposition and defences to such liability; the provisions are inconsistent and irreconcilable with the general relief available in s1318, so the specific tax penalty regime prevails.

Court Disposition

Appeal allowed; Cross-appeal dismissed

Orders

  • The appeal is allowed.
  • The order of Johnston DCJ on 6 September 2006 entering verdict for the defendant is set aside.