Denlay v Commissioner of Taxation [2011] FCAFC 63

FEDERAL COURT OF AUSTRALIA

Denlay v Commissioner of Taxation [2011] FCAFC 63 Citation: Denlay v Commissioner of Taxation [2011] FCAFC 63

Appeal from: Kevin Denlay v Commissioner of Taxation [2010] FCA 1434 Mirja Denlay v Commissioner of Taxation [2010] FCA 1435

Parties: KEVIN VINCENT DENLAY and MIRJA HELENA DENLAY v COMMISSIONER OF TAXATION

File number(s): QUD 14 of 2011 QUD 15 of 2011

Judges: KEANE CJ, DOWSETT AND REEVES JJ

Date of judgment: 11 May 2011

Catchwords: TAXATION – amended assessments for liability of tax – other information obtained by officers of the Commissioner of Taxation while abroad – information acquired from a third party who according to foreign law had stolen the information – full and free access to books etc by the Commissioner or his officers CRIMINAL LAW – alleged breach of law by officers of the Commissioner of Taxation - use of documents which were the proceeds of crime in relation to a foreign indictable offence – conscious maladministration of the assessment process – double criminality requirement – offence under foreign country's law and Australian domestic law – defence as to whether the alleged offence was excused or justified – whether information is property EVIDENCE – rule against hearsay - Jones v Dunkel inference

Words & phrases: "proceeds of crime" – "conscious maladministration" – "good faith" – "bad faith" – "reasonable grounds for suspicion" – "information"

Legislation: Judiciary Act 1903 (Cth) s 39B Criminal Code Act 1995 (Cth) ss 10.5, 400.1, 400.2, 400.9, s 477.1 Crimes Act 1900 (NSW) s 308C Income Tax Amendment Act 1936 (Cth) ss 166, 173, 175, 177, 263, 264 Income Tax Assessment Act 1997 (Cth) Taxation Administration Act 1953 (Cth) s 4A, Part IVC Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006 (Cth) Liechtenstein Criminal Code Evidence Act 1995 (Cth) ss 60, 69(2), 136, 140(2) Public Service Act 1999 (Cth) s 13