Clark v Commissioner of Taxation [2007] FCA 1426

Clark v Commissioner of Taxation [2007] FCA 1426

The Commissioner is entitled to rely on s 468 of the Corporations Act in support of the amended assessment because there is no absolute procedural fairness bar to raising new statutory grounds, so long as the taxpayer is given proper notice and opportunity to respond. There is no absolute rule prohibiting later events from being relied upon, but they must be shown to be relevant to the liability as at the date of the objection decision. Taxpayers are entitled to amend grounds of objection to address new contentions. The Commissioner's appeal statement must adequately identify all facts relied upon for key contentions such as trust resettlement.

Jurisdiction
Australia
Judgment Date
12 September 2007
Procedural Posture
Tax Appeal—administrative Law; Motion / Interlocutory Application for Orders on Procedural and Amendment Issues in Pending Tax Appeal
Outcome
Application refused in part, granted in part
Legal Topics
['amendment of Grounds of Objection' 'procedural Fairness' 'raising New Grounds on Appeal' 'capital Gains Tax' 'trust Resettlement' 'appeal Statement Requirements']
['taxation' 'practice and Procedure' 'corporations Law'] ['amendment of Grounds of Objection' 'procedural Fairness' 'raising New Grounds on Appeal' 'capital Gains Tax' 'trust Resettlement' 'appeal Statement Requirements']

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Procedural Posture

Tax Appeal—administrative Law; Motion / Interlocutory Application for Orders on Procedural and Amendment Issues in Pending Tax Appeal

Legal Issues

  1. 1 ['Whether the Commissioner may rely on s 468 of the Corporations Act 2001 (Cth) in support of an amended assessment when not previously raised' 'Whether procedural fairness is denied to the taxpayer if reliance is placed on a new legal ground' 'Whether leave should be granted to the taxpayer to amend grounds of objection to the amended assessment' "Adequacy of the Commissioner's appeal statement under Federal Court Rules"]

Ratio Decidendi

The Commissioner is entitled to rely on s 468 of the Corporations Act in support of the amended assessment because there is no absolute procedural fairness bar to raising new statutory grounds, so long as the taxpayer is given proper notice and opportunity to respond. There is no absolute rule prohibiting later events from being relied upon, but they must be shown to be relevant to the liability as at the date of the objection decision. Taxpayers are entitled to amend grounds of objection to address new contentions. The Commissioner's appeal statement must adequately identify all facts relied upon for key contentions such as trust resettlement.

Court Disposition

Application refused in part, granted in part

Orders

  • ['Orders sought by paragraphs 1 and 2 of the applicant’s Notice of Motion refused (strike out of Commissioner’s reliance on s 468 denied)' 'Applicant given leave to amend the grounds of objection to the amended assessment to add specified grounds in the annexure' 'Respondent (Commissioner) directed to provide within...