Brown v Commissioner of Taxation [2002] FCAFC 75; [2002] FCA 318

Brown v Commissioner of Taxation [2002] FCAFC 75 Brown v Commissioner of Taxation [2002] FCA 318

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Brown v Commissioner of Taxation [2002] FCA 318 INCOME TAX – Assessable income – whether benefits received by the Taxpayer were income or were received as a mere gift. ADMINISTRATIVE LAW – Whether administrative decision void where decision maker made use of material provided in the course of without prejudice negotiations – whether any material provided by applicant in negotiations claimed to be without prejudice was taken into account by the Commissioner in remitting penalty.

EVIDENCE – common law privilege protecting without prejudice communications – whether the factual foundation of the privilege was made out. Income Tax Assessment Act 1936 (Cth), ss 223(1), 227(3) Evidence Act 1995 (Cth), ss 131, 189 Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47, distinguished Christie v Federal Commissioner of Taxation (1956) 96 CLR 59, distinguished White v Overland [2001] FCA 1835, discussed Rush and Tompkins Ltd v Greater London Council [1989] 1 AC 1280, considered Ex parte Hamilton; Re Fagan [1966] 2 NSWR 732, cited Harris v Minister for Public Works (New South Wales) (1912) 14 CLR 721, cited Cornelius v The King (1936) 55 CLR 235, cited Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, cited Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534, at 540, cited Casley-Smith the FS Evans & Sons Pty Ltd (No 2) (1988) 49 SASR 332, cited Field v Commissioner for Railways (NSW) (1957) 99 CLR 285, cited Cutts v Head [1984] Ch 290, cited Scott v Federal Commissioner of Taxation (1966) 117 CLR 514, discussed Squatting Investment Co Ltd v Federal Commissioner of Taxation (1953) 86 CLR 570, discussed Federal Commissioner of Taxation v Dixon (1952) 85 CLR 540, cited Seymour v Reed [1927] AC 554, referred to Midland Railways Co v Sharpe [1904] AC 349 cited Herbert v McQuade [1902] 2KB 631, cited Halsbury's Laws of Australia S Odgers, Uniform Evidence Law (4th ed., 2000) Parsons, Income Taxation in Australia (1985) BROWN V COMMISSIONER OF TAXATION N 946 OF 2001 HILL, SACKVILLE AND FINN JJ 21 MARCH 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA