Elsinora Global Ltd v Healthscope Ltd (No. 2)[2006] FCA 18

The s 255 notices did not impose statutory obligations in accordance with their terms because the relevant addressees either had not been served with an operative s 255(1)(a) requirement, did not have and would not on the relevant events have receipt, control or disposal of money belonging to ECMI, or would not be liable to pay money to ECMI so as to attract s 255(2). The s 260-5 notice to ANZ Nominees would not operate because ANZ Nominees did not owe, and would not be taken to owe, money to ECMI on receipt of the retained sum; the notices to Elsinora, Tioga, Perlette, Mr Armstrong and Mr Berger would not operate unless and until they owed or were taken to owe money to ECMI. The...

Jurisdiction: Australia
Judgment Date: 03 February 2006
Procedural Posture: Application Challenging Notices Issued Under S 255 of the Income Tax Assessment Act 1936 (cth) and S 260 5 of Schedule 1 to the Taxation Administration Act 1953 (cth), and Cross Claim by the Deputy Commissioner of Taxation / Reasons for Judgment and Orders After Hearing
Outcome: Cross-claim dismissed; Deputy Commissioner to pay the costs of the applicants and the first and second respondents; parties given leave to make submissions as to any orders consistent with the reasons in respect of the application.
Legal Topics: ['income Tax Assessment Act 1936 (cth), S 255' 'taxation Administration Act 1953 (cth), Sch 1, S 260 5' 'money Belonging to a Non Resident' 'garnishee Notices' 'validity and Operative Effect of Tax Assessments' 'extraterritorial Operation']

['taxation' 'income Tax' 'tax Collection and Recovery'] ['income Tax Assessment Act 1936 (cth), S 255' 'taxation Administration Act 1953 (cth), Sch 1, S 260 5' 'money Belonging to a Non Resident' 'garnishee Notices' 'validity and Operative Effect of Tax Assessments' 'extraterritorial Operation']

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Procedural Posture

Application Challenging Notices Issued Under S 255 of the Income Tax Assessment Act 1936 (cth) and S 260 5 of Schedule 1 to the Taxation Administration Act 1953 (cth), and Cross Claim by the Deputy Commissioner of Taxation / Reasons for Judgment and Orders After Hearing

Legal Issues

1 ['Whether s 255 of the Income Tax Assessment Act 1936 (Cth) requires receipt, control or disposal of money belonging to a non-resident at the time a notice is served or whether later receipt, control or disposal is sufficient.' 'Whether tax must be due and payable by the non-resident at the time of a s 255 notice.' 'In what circumstances money in the receipt, control or disposal of one person belongs to a non-resident for s 255.' 'Whether Healthscope, ANZ Nominees, Elsinora, Tioga, Perlette, Mr Armstrong or Mr Berger had or would have receipt, control or disposal of money belonging to ECMI.' 'Whether the s 260-5 notices imposed obligations on ANZ Nominees, Elsinora, Tioga, Perlette, Mr Armstrong or Mr Berger.' 'Whether the assessment dated 1 December 2004 and amended assessment dated 21 January 2005 were valid assessments protected by ss 175 and 177(1) of the ITAA 1936.' 'Whether s 255 or s 260-5 could operate extraterritorially.']

Ratio Decidendi

Court Disposition

Cross-claim dismissed; Deputy Commissioner to pay the costs of the applicants and the first and second respondents; parties given leave to make submissions as to any orders consistent with the reasons in respect of the application.

Orders

['The parties have leave to make submissions as to the orders, if any, consistent with the reasons for judgment, to be made in respect of the application.' 'The cross-claim be dismissed.' 'The third respondent pay the costs of the applicants and the first and second respondents of the proceedings.']