Mulherin v Commissioner of Taxation [2013] FCAFC 115

FEDERAL COURT OF AUSTRALIA

Mulherin v Commissioner of Taxation [2013] FCAFC 115 Citation: Mulherin v Commissioner of Taxation [2013] FCAFC 115

Appeal from: [2012] AATA 557

Parties: HENRY MULHERIN v COMMISSIONER OF TAXATION

File number: NSD 1384 of 2012

Judges: EDMONDS, GRIFFITHS AND PAGONE JJ

Date of judgment: 23 October 2013

Catchwords: INCOME TAX – appeal from Administrative Appeals Tribunal – whether applicant was presently entitled to income of a resident trust estate – ground of appeal not competent – onus of proof: whether applicant has to show what his actual taxable income is – necessity to prove actual taxable income when assessment made under s 167 of Income Tax Assessment Act 1936 (Cth) – whether Tribunal erred in refusing applicant leave to give evidence otherwise than in person where applicant's credit in issue – whether such refusal denied applicant procedural fairness – no error in Tribunal's exercise of discretion and no failure to afford the applicant procedural fairness – whether applicant was a non-resident in a relevant year of income – no error of law engaged by amended notice of appeal

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Income Tax Assessment Act 1936 (Cth) ss 166, 167 Federal Court Rules 2011 rr 33.12, 33.15 Federal Court Rules 1979 O 53 r 3

Cases cited: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 cited Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 cited Commissioner of Taxation v Dalco (1990) 168 CLR 614 followed Commissioner of Taxation v Rigoli [2003] FCA 784 cited Gashi v Federal Commissioner of Taxation (2013) 209 FCR 301 followed House v The King (1936) 55 CLR 499 cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985–1986) 162 CLR 24 cited Pattenden v Federal Commissioner of Taxation (2008) 175 FCR 1 cited Polanski v Conde Nast Publications Ltd [2005] 1 All ER 945 cited TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63