Shord v Commissioner of Taxation [2017] FCAFC 167

FEDERAL COURT OF AUSTRALIA

Shord v Commissioner of Taxation [2017] FCAFC 167 Appeal from: Shord v Commissioner of Taxation [2016] FCA 761

File number(s): WAD 332 of 2016

Judge(s): SIOPIS, LOGAN AND WHITE JJ

Date of judgment: 26 October 2017

Catchwords: TAXATION – the appellant worked on assignments overseas – the appellant returned to Australia between assignments – whether the appellant was engaged in foreign service within the meaning of s 23AG(7) of the Income Tax Assessment Act 1936 (Cth) and thereby exempt from income tax – whether the appellant was entitled to tax offsets for foreign income tax paid pursuant to s 770-10(1) of the Income Tax Assessment Act 1997 (Cth) – whether the appellant was an "employee" under s 23AG(7) of the Income Tax Assessment Act 1936. TAXATION – onus of proof – Taxation Administration Act 1953 (Cth), s 14ZZK(b) – whether there was a duty upon the Commissioner of Taxation under s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) to assist in obtaining evidence of the payment of tax by the appellant in foreign countries. ADMINISTRATIVE LAW - review by Administrative Appeals Tribunal of objection decision of the Commissioner of Taxation – the Commissioner advised the Tribunal at the hearing that he no longer pursued a contention in the statement of facts and contentions – the appellant's representative nevertheless adduced evidence and made submissions on that contention – the Tribunal found against the appellant on that contention – whether there was a denial of procedural fairness.

Legislation: Income Tax Assessment Act 1936 (Cth) ss 6(1), 23AG, 23AG(1), 23AG(6), 23AG(6)(a), 23AG(6A), 23AG(7), 177F(1), 166 Income Tax Assessment Act 1997 (Cth) Div 770, ss 770-10, 770-10(1) Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 33(1AA), 33(1AB), 37, 37(1), 37(1)(b), 44 Taxation Administration Act 1953 (Cth) ss 14ZZK, 14ZZK(b), 15 Crimes Act 1914 (Cth) s 43 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Judiciary Act 1903 (Cth) s 55ZF Federal Court Rules 2011 (Cth) r 33.03