Bonnell v Commissioner of Taxation [2008] FCAFC 146

FEDERAL COURT OF AUSTRALIA

Bonnell v Commissioner of Taxation [2008] FCAFC 146

INCOME TAX – judicial review of decision not to remit additional tax – summary dismissal on basis that proceeding had no reasonable prospect of success – whether judgment interlocutory or final – hearing as if on an appeal – whether invalid decision not to remit additional tax invalidates assessment of primary tax contained in same notice – held no Federal Court of Australia Act 1976 (Cth) s 31A Income Tax Assessment Act 1936 (Cth)ss 6, 166, 169, 170, 174, 175, 177, 222A, 226K, 227 Taxation Administration Act 1953 (Cth) Part IVC

Deputy Commissioner of Taxation v Mostyn (1987) 18 FCR 260 referred to Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 considered Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 referred to R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 referred to DAVID NEIL BONNELL v COMMISSIONER OF TAXATION

NSD 1038 of 2008

LINDGREN, EMMETT AND EDMONDS JJ

18 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1038 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DAVID NEIL BONNELL

Appellant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGES: LINDGREN, EMMETT AND EDMONDS JJ

DATE OF ORDER: 18 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. If and to the extent that the appellant needs leave to appeal from the judgment given on 1 July 2008 in proceedings NSD 1963 of 2006 (the Primary Proceeding), leave to appeal be refused. 2. If and to the extent that the appellant does not need leave to appeal from the judgment referred to in para (1) above, the appeal be dismissed. 3. The respondent's cross-appeal be dismissed. 4. The respondent's motion seeking leave to appeal from Order (8) made on 8 February 2008 in the Primary Proceeding be dismissed. 5. The appellant pay the respondent's costs.