Cumins v Deputy Commissioner of Taxation [2007] FCAFC 207

FEDERAL COURT OF AUSTRALIA

Cumins v Deputy Commissioner of Taxation [2007] FCAFC 207

BANKRUPTCY – bankruptcy notice – validity – alleged overstatement – application to set aside – judgment debt owed to Commissioner – whether credit should have been allowed for PAYG instalments remitted to Commissioner by employer but not credited under assessment at date of bankruptcy notice – whether running balance account provisions of Taxation Administration Act 1953 (Cth) required credit, prior to issue of assessment, in respect of PAYG payments remitted by employer – argument not put at first instance – no evidence relating to existence or nature of any relevant RBA – no obligation on Commissioner to establish RBAs – appeal dismissed TAXATION - income tax – pay as you go – withheld payments – time at which credit for such payments allowed – issue of assessment – whether credit to be given prior to assessment under RBA system Income Tax Assessment Act 1936 (Cth) s 204, Taxation Administration Act 1953 (Cth) s 6-1, s 6-5, s 16-20, s 8AAZC, s 8AAZL, s 8AAZLC, s 8AAZLF Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337 cited SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625 cited Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation (2006) 94 SASR 269 cited BRIAN CUMINS v DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA WAD 361 OF 2006

FRENCH, TAMBERLIN AND STONE JJ

24 december 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 361 OF 2006

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT BETWEEN: BRIAN CUMINS

Appellant

AND: DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGES: FRENCH, TaMBERLIN AND STONE JJ DATE OF ORDER: 24 december 2007

WHERE MADE: PERTH

THE COURT ORDERS THAT: