Re Evans, Ross Alexander Ex Parte Sweeney, Paul Desmond & Ors [1995] FCA 1147

Re Evans, Ross Alexander Ex Parte Sweeney, Paul Desmond & Ors [1995] FCA 1147

The tax refund relating to income earned before bankruptcy is an asset which vested in the trustee upon the bankruptcy; whether the refund is assessed and received after bankruptcy does not alter its character as a pre-bankruptcy asset. It is not post-bankruptcy income for the purposes of income contribution assessment.

Parties
Applicant Trustee: Paul Desmond Sweeney; Bankrupt/respondent: Ross Alexander Evans; Respondent: Melanie Jane Evans; Respondent: James E Kern & Associates
Jurisdiction
Australia
Judgment Date
03 November 1995
Procedural Posture
Application for Directions in Bankruptcy / Final Determination of Application
Outcome
Application granted. Declaration made that the sum of $38,338.53 vests in the trustee as an asset of the bankrupt estate. Liberty to apply granted regarding the $3,905.09 payment to the Child Support Agency. Costs ordered as costs of the trustee in the administration of the estate.
Legal Topics
Bankruptcy Asset Vesting, Tax Refund Entitlement, Income Contribution Assessment
Bankruptcy Taxation Law Bankruptcy Asset Vesting Tax Refund Entitlement Income Contribution Assessment

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Parties

Paul Desmond Sweeney

Applicant Trustee

Ross Alexander Evans

Bankrupt/respondent

Melanie Jane Evans

Respondent

James E Kern & Associates

Respondent

Procedural Posture

Application for Directions in Bankruptcy / Final Determination of Application

Legal Issues

  1. 1 Whether a tax refund in respect of pre-bankruptcy earnings, assessed and received post-bankruptcy, is an asset vested in the trustee or income earned post-bankruptcy subject to income contribution assessment.
  2. 2 Whether the entitlement to the refund depends upon assessment or arises earlier.

Ratio Decidendi

The tax refund relating to income earned before bankruptcy is an asset which vested in the trustee upon the bankruptcy; whether the refund is assessed and received after bankruptcy does not alter its character as a pre-bankruptcy asset. It is not post-bankruptcy income for the purposes of income contribution assessment.

Court Disposition

Application granted. Declaration made that the sum of $38,338.53 vests in the trustee as an asset of the bankrupt estate. Liberty to apply granted regarding the $3,905.09 payment to the Child Support Agency. Costs ordered as costs of the trustee in the administration of the estate.

Orders

  • The sum of $38,338.53 paid by the Commissioner of Taxation to the accountant for the bankrupt subsequent to September 1993 is an asset which vests in the applicant as trustee of the property of the bankrupt.
  • Liberty granted to the trustee and the respondents to apply for further orders regarding the payment of $3,905.09 to a child support agency.