Wu v Commissioner of Taxation [2018] FCA 1339

Wu v Commissioner of Taxation [2018] FCA 1339

The appeal was dismissed because the ground based on s 768-910 was not raised before the Tribunal, did not clearly arise from the materials, and, due to the operation of s 14ZZK of the Taxation Administration Act 1953, could not be raised for the first time in the Federal Court. The Tribunal did not err in law in failing to consider a provision that was not placed in issue by the parties, and there were no exceptional circumstances warranting departure from this general rule.

Parties
Applicant: Gui Ping Wu; Respondent: Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
29 August 2018
Procedural Posture
Income Tax Appeal / Appeal From the Administrative Appeals Tribunal; Application for Extension of Time
Outcome
Appeal dismissed with costs; application for extension of time granted
Legal Topics
Income Tax, Temporary Residency, Assessable Income, Administrative Review, Jurisdictional Error, Burden of Proof
Taxation Law Income Tax Temporary Residency Assessable Income Administrative Review Jurisdictional Error Burden of Proof

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Parties

Gui Ping Wu

Applicant

Commissioner of Taxation

Respondent

Procedural Posture

Income Tax Appeal / Appeal From the Administrative Appeals Tribunal; Application for Extension of Time

Legal Issues

  1. 1 Whether the Tribunal erred in failing to consider the application of s 768-910 of the Income Tax Assessment Act 1997 (Cth)
  2. 2 Whether s 768-910 could be raised for the first time on appeal
  3. 3 Whether appeal should be remitted to the Tribunal

Ratio Decidendi

The appeal was dismissed because the ground based on s 768-910 was not raised before the Tribunal, did not clearly arise from the materials, and, due to the operation of s 14ZZK of the Taxation Administration Act 1953, could not be raised for the first time in the Federal Court. The Tribunal did not err in law in failing to consider a provision that was not placed in issue by the parties, and there were no exceptional circumstances warranting departure from this general rule.

Court Disposition

Appeal dismissed with costs; application for extension of time granted

Orders

  • The application for an extension of time be granted.
  • The appeal be dismissed.