Commissioner of Taxation v Park [2012] FCAFC 122

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Park [2012] FCAFC 122 Citation: Commissioner of Taxation v Park [2012] FCAFC 122

Appeal from: Tang & Anor v Bassili & Ors [2011] FMCA 544

Parties: COMMISSIONER OF TAXATION v JOHN PARK and LLOYD LOK ING TANG

File number: QUD 209 of 2011

Judges: SIOPIS, JESSUP AND KATZMANN JJ

Date of judgment: 31 August 2012

Catchwords: TAXATION – a taxpayer owed a tax debt to the Commissioner of Taxation – the taxpayer entered into a contract for the sale of land - the land was the subject of two registered mortgages - the sale price of the land was insufficient to discharge the debts owed to the mortgagees – before settlement the Commissioner served upon the purchasers of the land, a garnishee notice issued under s 260-5 of Sch 1 of the Taxation Administration Act 1953 (Cth) - the garnishee notice required the purchasers to pay part of the purchase price to the Commissioner in discharge of the taxpayer's tax debt – the Commissioner claimed that he was entitled at settlement to sufficient of the proceeds of the sale of the land to discharge the tax debt in priority to the mortgagee's right to the repayment of the monies advanced to the taxpayer - whether the monies comprising the proceeds of the sale of the land were monies due to the taxpayer pursuant to the contract for the sale of the land – whether on the release of the legal charge under the mortgage to permit settlement to proceed, the mortgagee held an equitable charge over the proceeds of the sale – whether the proceeds of the sale were available monies to which the garnishee notice could attach.