Keris Pty Ltd (Trustee) v Deputy Commissioner of Taxation [2017] FCAFC 164

FEDERAL COURT OF AUSTRALIA

Keris Pty Ltd (Trustee) v Deputy Commissioner of Taxation [2017] FCAFC 164 Appeal from: Keris Pty Ltd (Trustee) v Deputy Commissioner of Taxation [2015] FCA 1381

File number: WAD 738 of 2015

Judges: GREENWOOD, MCKERRACHER AND MOSHINSKY JJ

Date of judgment: 13 October 2017

Catchwords: TAXATION – consideration of the construction to be attributed to s 255-100 of the Taxation Administration Act 1953 (Cth) conferring a power on the Commissioner to require "you" to give the Commissioner security for the "due payment of an existing or future *tax-related liability of yours" – consideration of the subject matter of the power and the factors informing the exercise of the power CONSTITUTIONAL LAW – consideration of whether s 255-100 is a valid law of the Commonwealth – consideration of whether the provision is a law with respect to the power conferred on the Parliament by s 51(ii) of the Constitution to make laws with respect to taxation – consideration of whether s 255-100 is a provision for the collection of tax – consideration of whether the provision is an incident of or ancillary to the power conferred by s 51(ii) CONSTITUTIONAL LAW – consideration of whether a law conferring power upon the Commissioner of Taxation to require the giving of security in the form of a mortgage of real estate for the "due payment" of an "existing or future *tax-related liability of yours" is a law with respect to the acquisition of property from the appellant for a purpose in respect of which the Parliament has the power to make laws, within s 51(xxxi) of the Constitution

Legislation: Constitution, ss 51(ii), 51(xxxi) and 51(xxxix) A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 7-1, 7-5, 7-10, 7-15, 9-5, 9-10, 9-20, 9-30, 9-40, 17-5, 27-5, 27-10, 27-30, 31-5, 31-8, 31-15, 33-3, 33-5, 33-15, 33-99, 75-5, 75-10, 75-11 and 75-15 Acts Interpretation Act 1901 (Cth), ss 15A, 15AA Income Tax Assessment Act 1936 (Cth), ss 6(1), 161, 161A, 162, 163, 166, 167, 168, 169, 174 Income Tax Assessment Act 1997 (Cth), ss 3-10, 4-5, 4-10, 4-15, 5-5, 5-15, 995(1) Taxation Administration Act 1953 (Cth), Schedule 1, ss 155-5, 155-10, 155-15, 155-25, 250-5, 250-10, 250-25, 255-100, 255-105, 255-110 and 388-55