Mandalinic v Stone (Liquidator) [2023] FCAFC 146

Mandalinic v Stone (Liquidator) [2023] FCAFC 146

A director of a company, including a company in liquidation, may not file an affidavit in director penalty proceedings to reduce or revoke a PAYG withholding estimate under s 268-40 of Schedule 1 to the Taxation Administration Act 1953 (Cth). The capacity to file a statutory declaration or affidavit is vested in the company or, if under external administration, its supervising entity (liquidator etc). A director’s separate penalty liability is subject to specific statutory defences, not reduction of the company’s estimate by director affidavit.

Jurisdiction
Australia
Judgment Date
04 September 2023
Procedural Posture
Appeal / Determination of Appeal From Interlocutory Decision, Leave to Appeal Granted; Appeal Heard and Dismissed
Outcome
Appeal dismissed. Leave to appeal granted. Any application for costs to be made in writing; determination of costs to be made on the papers subject to any further order.
Legal Topics
['director Penalty Regime' 'payg Withholding Estimates' 'revocation of Tax Estimates' 'affidavit and Statutory Declaration Requirements' 'external Administration and Insolvency' 'statutory Construction']
['corporations Law' 'insolvency Law' 'taxation Law' 'civil Procedure'] ['director Penalty Regime' 'payg Withholding Estimates' 'revocation of Tax Estimates' 'affidavit and Statutory Declaration Requirements' 'external Administration and Insolvency' 'statutory Construction']

Case Brief

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Procedural Posture

Appeal / Determination of Appeal From Interlocutory Decision, Leave to Appeal Granted; Appeal Heard and Dismissed

Legal Issues

  1. 1 ['Whether a director of a company can file an affidavit in director penalty proceedings that has effect under s 268-40 of Schedule 1 to the Taxation Administration Act 1953 (Cth) to reduce or revoke an estimate of company liability; or does this right rest exclusively with the company or supervising entity such as a liquidator']

Ratio Decidendi

A director of a company, including a company in liquidation, may not file an affidavit in director penalty proceedings to reduce or revoke a PAYG withholding estimate under s 268-40 of Schedule 1 to the Taxation Administration Act 1953 (Cth). The capacity to file a statutory declaration or affidavit is vested in the company or, if under external administration, its supervising entity (liquidator etc). A director’s separate penalty liability is subject to specific statutory defences, not reduction of the company’s estimate by director affidavit.

Court Disposition

Appeal dismissed. Leave to appeal granted. Any application for costs to be made in writing; determination of costs to be made on the papers subject to any further order.

Orders

  • ['The appeal be dismissed.' 'Any application for costs to be made in writing, limited to three pages and filed within seven days of publication of the reasons and responded to within a further seven days, if made.' 'Subject to any further order of the Court, determination of any costs application will proceed on the...