Australia and New Zealand Banking Group Limited v Konza [2012] FCAFC 127

FEDERAL COURT OF AUSTRALIA

Australia and New Zealand Banking Group Limited v Konza [2012] FCAFC 127 Citation: Australia and New Zealand Banking Group Limited v Konza [2012] FCAFC 127

Appeal from: Australia and New Zealand Banking Group Limited v Konza [2012] FCA 196

Parties: AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD (ACN 005 357 522) v MARK KONZA, DEPUTY COMMISSIONER OF TAXATION and THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

File number: VID 277 of 2012

Judges: KENNY, EDMONDS AND ROBERTSON JJ

Date of judgment: 12 September 2012

Catchwords: TAXATION – notices issued pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) to bank in Australia to furnish information stored on a digital database maintained by bank concerning customers of affiliate in Vanuatu – whether disclosure of information sought under those notices would render bank in contravention of the law of Vanuatu – whether Commissioner authorised under s 264 to issue notice that, by compliance, would render recipient in contravention of a foreign law – where information that would be furnished in compliance with such a notice would not relate to Australian taxpayers, whether improper purpose demonstrated and notice invalidated – whether either notice invalid for uncertainty. Held: (1) evidentiary onus of establishing that disclosure would cause a breach of non-statutory obligation of confidence of bank's affiliate to its customers not discharged; (2) validity of notice not inhibited by any foreign law that purports to prohibit the disclosure of information in Australia to the Commissioner; (3) s 264 notice constrained only insofar as the notice must be for the purposes of the Income Tax Assessment Act 1936 (Cth); no improper purpose made out; notices not invalidated for improper purpose; (4) second notice invalidated by reason of uncertainty of term used which permeated the whole of the notice.