High Court of Australia

Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32

237 CLR 146; 82 ALJR 1177; 247 ALR 605

31 Jul 2008

Case Number: A47/2007

Before

Gummow, Kirby, Hayne, Heydon, Crennan JJ

Catchwords

Income Tax – Review and appeals - Judicial review - Judiciary Act 1903 (Cth) ("the Judiciary Act"), s 39B - Appellant Commissioner issued amended assessments of income tax to respondent taxpayer - Taxpayer alleged Commissioner deliberately "double counted" amounts of assessable income - Taxpayer sought judicial review in Federal Court under s 39B of the Judiciary Act while "appeal" pending under Pt IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act") - Relationship between Constitution and proceedings under Pt IVC of the Administration Act and s 39B of the Judiciary Act - Scope of issues for determination in s 39B proceeding - Relevance of availability of remedy in Pt IVC proceeding to discretion to grant relief in s 39B proceeding.

Income Tax – Validity of assessment - Judicial review - Finding of Full Court that Commissioner failed to exercise bona fide the power of assessment -Income Tax Assessment Act 1936 (Cth) ("the Act"), s 175 provided that failure to comply with provisions of the Act did not affect validity of assessment - Whether deliberate maladministration manifests jurisdictional error - Whether "double counting" manifested jurisdictional error where amended assessment issued on footing that compensatory adjustment could be made under s 177F(3) - Whether amended assessment "tentative" or "provisional" - Meaning of "bona fide" - Whether other grounds for judicial review of amended assessment relied on by the taxpayer and available in the proceedings.

Income Tax – Validity of assessment - Judicial review - Section 177(1) of the Act provided for production of notices of assessment to be conclusive evidence of certain matters except in Pt IVC proceedings - Application of s 177(1) to proceedings under s 39B of the Judiciary Act - Whether s 177(1) a privative clause subject to "Hickman principle" - Relevance of Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168.

Constitutional law (Cth) – Income tax - Criteria for valid law with respect to taxation - Absence of arbitrariness and susceptibility to judicial scrutiny - Role of judicial remedies under s 75(v) of the Constitution and s 39B of the Judiciary Act in upholding constitutional design - Discretionary character of such remedies derived from the Constitution.

Income Tax – Review and appeals - Judicial review in Federal Court under the Judiciary Act, s 39B - Discretionary character of such review - Availability of proceedings under Pt IVC of the Administration Act - Institution of proceedings under Pt IVC of the Administration Act - Relevance of that step to exercise of discretion to decide proceedings under the Judiciary Act, s 39B - Whether proceedings under s 39B should be dismissed in exercise of discretion - Whether necessary and appropriate to consider application of ss 175 and 177 of the Act.

Words and phrases – "assessment", "bona fide", "double counting", "good faith", "Hickman principle", "jurisdictional error", "privative clause", "provisional", "tentative".

Judiciary Act 1903 (Cth) – s 39B.

Income Tax Assessment Act 1936 (Cth) – ss 175 and 177(1).

Taxation Administration Act 1953 (Cth) – Pt IVC.

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