Chhua v Commissioner of Taxation [2018] FCAFC 86

FEDERAL COURT OF AUSTRALIA

Chhua v Commissioner of Taxation [2018] FCAFC 86 Appeal from: Chhua v Commissioner of Taxation [2017] FCA 1127

File number: VID 1115 of 2017

Judges: LOGAN, MOSHINSKY AND STEWARD JJ

Date of judgment: 6 June 2018

Catchwords: TAXATION – appeal from a decision of the Federal Court on demurrer – judicial review sought pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to the formation by the Commissioner of an opinion that there had been fraud or evasion for the purposes of item 5 of s 170(1) of the Income Tax Assessment Act 1936 (Cth) – circumstances in which the formation of a fraud or evasion opinion can be subject to judicial review PRACTICE AND PROCEDURE – application for an extension of time for filing a notice of appeal – appeal from judgment on demurrer – whether demurrer finally disposed of the dispute – leave to appeal interlocutory decision

Legislation: Constitution s 75 Federal Court of Australia Act 1976 (Cth) s 37M Income Tax Assessment Act 1936 (Cth) ss 136AD, 170, 175, 175A, 177 Income Tax Assessment Act 1997 (Cth) ss 292-265, 995-1 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) Taxation Administration Act 1953 (Cth) ss 14ZZK, 14ZZO, Sch 1 s 350-10

Cases cited: Binetter v Federal Commissioner of Taxation (2016) 249 FCR 534 Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40 Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (No.4) [2015] FCA 1092; 102 ATR 13 Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 David Jones Finance & Investments Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 484 Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 Ex parte Bucknell (1936) 56 CLR 221 Featherby v Federal Commissioner of Taxation (No.2) (2016) 240 FCR 149 Federal Commissioner of Taxation v Administrative Appeals Tribunal (2011) 191 FCR 400 Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 Gashi v Federal Commissioner of Taxation (2013) 209 FCR 301 George v Federal Commissioner of Taxation (1952) 86 CLR 183 Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 Hope v R.C.A Photophone of Australia Pty Ltd (1937) 59 CLR 348 Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 Kennedy v Administrative Appeals Tribunal (2008) 168 FCR 566 McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Roberts v Deputy Commissioner of Taxation (2013) 228 FCR 280 Smolle v Australia and New Zealand Banking Group Limited (No. 2) [2007] FCA 1967 W R Carpenter Pty Ltd v Federal Commissioner of Taxation (2006) 234 ALR 451 Woods v Deputy Commissioner of Taxation [2011] TASSC 68; 86 ATR 620 Wurridjal v Commonwealth (2009) 237 CLR 309