Guss v Deputy Commissioner of Taxation [2006] FCAFC 88

FEDERAL COURT OF AUSTRALIA

Guss v Deputy Commissioner of Taxation [2006] FCAFC 88 TAXES AND DUTIES – income tax and related legislation – Income Tax Assessment Act 1936 (Cth) – prompt recovery, through estimates and payment agreements, of certain amounts not remitted – where Commissioner empowered to make estimate of amount – where making of estimate created liability upon company – where obligation imposed upon directors to cause company to pay estimate or enter administration or be wound up – where obligation enforced by penalty imposed upon directors – where Commissioner not entitled to recover penalty unless statutory notice given – whether decision to give notice reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6 Income Tax Assessment Act 1936 (Cth) Part IV Div 9 ss 222AGA, 222AHA, 222APB, 222APC, 222APE Attorney-General (Cth) v Queensland (1990) 25 FCR 125 cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered Carmody v Mackellar (1997) 76 FCR 115 cited Hutchins v Collins, Deputy Commissioner of Taxation (1996) 65 FCR 269 referred to DFCT v McArdle (2003) 53 ATR 302 cited DFCT v Woodhams (1999) 199 CLR 370 considered Director-General for Social Services v Chaney (1980) 31 ALR 571 referred to Evans v Friemann (1981) 53 FLR 229 considered Federal Commissioner of Taxation v Pilnara Pty Ltd (1999) 96 FCR 82 cited Forsyth v DCT (2004) 62 NSWLR 132 cited Griffith University v Tang (2005) 221 CLR 99 considered Guss v Deputy Commissioner of Taxation [2005] FCA 1499 affirmed Industrial Equity Ltd v Commissioner of Taxation (1990) 170 CLR 649 considered Pacific Century Production Pty Ltd v Watson (2001) 113 FCR 466 cited Re Excel Finance Corporation Ltd (rec and mgr apptd); Worthley v England (1994) 52 FCR 69 cited Ricegrowers Co-operative Mills Ltd v Bannerman and Trade Practices Commission (1982) 38 ALR 535 considered Ross v Costigan (1982) 59 FLR 184, cited Salerno v National Crime Authority (1997) 75 FCR 133 referred to Scharer v State of New South Wales (2001) 53 NSWLR 299 referred to Southern Farmers Group Limited v Deputy Federal Commissioner of Taxation (SA) (1989) 21 FCR 66 cited Woodhams v DCT [1998] 4 VR 309 referred to