Commissioner of Taxation v McGrouther [2015] FCAFC 34

Commissioner of Taxation v McGrouther [2015] FCAFC 34

Section 14ZYA of the Taxation Administration Act 1953 (Cth), by its terms and statutory context, confers rights for the sole benefit of the taxpayer. The taxpayer may, before operation of the deeming provision in s 14ZYA(3), validly withdraw a notice given under s 14ZYA(2), thereby waiving the statutory consequence. As such, where a notice was withdrawn, no objection decision was deemed to have been made and no Part IVC appeal was competent.

Parties
Applicant/appellant: Commissioner of Taxation; First Respondent: Tod Stephen McGrouther; Second Respondent: Vickie Isabelle McGrouther
Jurisdiction
Australia
Judgment Date
16 March 2015
Procedural Posture
Appeal / Application for Leave to Appeal and Hearing of the Appeal From a Single Judge Dismissing Application for Strike Out or Summary Dismissal
Outcome
Appeal allowed; leave to appeal granted
Legal Topics
Taxation Objections, Statutory Interpretation, Waiver of Statutory Rights, Jurisdiction, Summary Dismissal
Taxation Law Administrative Law Practice and Procedure Taxation Objections Statutory Interpretation Waiver of Statutory Rights Jurisdiction Summary Dismissal

Case Brief

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Parties

Commissioner of Taxation

Applicant/appellant

Tod Stephen McGrouther

First Respondent

Vickie Isabelle McGrouther

Second Respondent

Procedural Posture

Appeal / Application for Leave to Appeal and Hearing of the Appeal From a Single Judge Dismissing Application for Strike Out or Summary Dismissal

Legal Issues

  1. 1 Whether a taxpayer who has given a notice under s 14ZYA(2) of the Taxation Administration Act 1953 (Cth) can withdraw such notice before the operation of s 14ZYA(3) deems disallowance of a taxation objection;
  2. 2 Whether the statutory rights conferred on a taxpayer under s 14ZYA are capable of waiver;
  3. 3 Whether dismissal for want of jurisdiction was appropriate after purported withdrawal of the notices.

Ratio Decidendi

Section 14ZYA of the Taxation Administration Act 1953 (Cth), by its terms and statutory context, confers rights for the sole benefit of the taxpayer. The taxpayer may, before operation of the deeming provision in s 14ZYA(3), validly withdraw a notice given under s 14ZYA(2), thereby waiving the statutory consequence. As such, where a notice was withdrawn, no objection decision was deemed to have been made and no Part IVC appeal was competent.

Court Disposition

Appeal allowed; leave to appeal granted

Orders

  • The application for leave to appeal filed 28 October 2014 be granted and the draft notice of appeal be taken as filed.
  • The appeal be allowed.