Industrial Equity Ltd v Commissioner of Taxation [1999] FCA 1533

Industrial Equity Ltd v Commissioner of Taxation [1999] FCA 1533

The notice was invalid because s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth) provides a true alternative between attendance before the Commissioner and attendance before an authorised officer, and the notice impermissibly required attendance before any or all of several authorised officers and the Deputy Commissioner. The notice could not be saved by severance because doing so would require the Court to choose between alternatives.

Jurisdiction
Australia
Judgment Date
27 October 1999
Procedural Posture
Application for Review of a Decision to Issue a Notice Under S 264 of the Income Tax Assessment Act 1936 (cth) / Final Determination of the Statutory Construction Objection to the Notice; Other Interlocutory Stay Grounds Not Considered
Outcome
Application allowed; notice set aside; respondents ordered to pay the applicants' costs.
Legal Topics
['validity of Notice Under S 264(1)(b)' 'statutory Construction of Disjunctive "or"' 'requirement to Attend and Give Evidence Before the Commissioner or Authorised Officers' 'administrative Decisions (judicial Review) Act Review']
['income Tax' 'administrative Law'] ['validity of Notice Under S 264(1)(b)' 'statutory Construction of Disjunctive "or"' 'requirement to Attend and Give Evidence Before the Commissioner or Authorised Officers' 'administrative Decisions (judicial Review) Act Review']

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Procedural Posture

Application for Review of a Decision to Issue a Notice Under S 264 of the Income Tax Assessment Act 1936 (cth) / Final Determination of the Statutory Construction Objection to the Notice; Other Interlocutory Stay Grounds Not Considered

Legal Issues

  1. 1 ['Whether s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth) contains a true disjunctive "or" in the phrase "before him or before any officer authorized by him in that behalf".' 'Whether a notice under s 264(1)(b) may require attendance before both the Deputy Commissioner and one or more authorised officers.' 'Whether a notice under s 264(1)(b) must specify the person or persons before whom the examinee is required to attend and give evidence.' 'Whether the notice could be saved by severance.']

Ratio Decidendi

The notice was invalid because s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth) provides a true alternative between attendance before the Commissioner and attendance before an authorised officer, and the notice impermissibly required attendance before any or all of several authorised officers and the Deputy Commissioner. The notice could not be saved by severance because doing so would require the Court to choose between alternatives.

Court Disposition

Application allowed; notice set aside; respondents ordered to pay the applicants' costs.

Orders

  • ['The Notice directed by the second respondent to the second applicant dated 25 October 1999 for attendance pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) on 28 October 1999 be set aside.' 'The respondents pay the costs of the applicants.']