Commissioner of Taxation v Hornibrook [2006] FCAFC 170

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Hornibrook [2006] FCAFC 170

TAXATION LAW – income tax – remission of additional or penalty tax by Administrative Appeals Tribunal – Tribunal did not have power to remit additional tax in exercising its jurisdiction under s 14ZZ of the Taxation Administration Act 1953 (Cth) having affirmed liability for primary tax – appeal allowed

STATUTES – specific prohibition in one statute not overridden by general power in complementary statute Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 25, 27, 29, 32, 33, 35, 41, 43, 44 Income Tax Assessment Act 1936 (Cth), ss 193, 207, 223, 227, Pt VII Taxation Administration Act 1953 (Cth), Pt IVC, ss 14ZL, 14ZQ, 14ZR, 14ZS, 14ZU, 14ZY, 14ZZ, 14ZZA, 14ZZK Taxation Laws Amendment (No 3) Act 1991 (Cth) Taxation Laws Amendment (Self Assessment) Act 1992 (Cth), ss 6, 14, 27 Commissioner of Taxation v Hornibrook (2006) 42 AAR 136; 2006 ATC 4051; (2006) 61 ATR 573; [2006] FCA 9reversed Re Applicant and Federal Commissioner of Taxation 2005 ATC 127; (2005) 58 ATR 1256 related Australian Securities and Investments Commission v Donald (2003) 136 FCR 7considered Berowra Holdings Pty Ltd v Gordon (2006) 228 ALR 387; (2006) 80 ALJR 1214 considered Comcare v Burton (1998) 157 ALR 522 cited Comcare v Etheridge (2006) 149 FCR 522 cited Commissioner of Taxation v Queensland Trading & Holding Company Ltd [2006] FCAFC 112applied Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427 cited Coulton v Holcombe (1986) 162 CLR 1applied Grollo Nominees Pty Ltd and Others v Commissioner of Taxation (1997) 73 FCR 452 discussed HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 cited Hoffman v Chief of Army (2004) 137 FCR 520 cited Isaacs v Commissioner of Taxation (2006) 151 FCR 427 cited Lees v Comcare and Another (1999) 56 ALD 84; (1999) 29 AAR 350 cited Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 cited O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356cited PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited Saraswati v The Queen (1991) 172 CLR 1 applied Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 cited Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1982) 148 CLR 150 cited Water Board v Moustakas (1987) 180 CLR 491 cited