Mandalinic v Stone (Liquidator) [2023] FCAFC 146

Federal Court of Australia

Mandalinic v Stone (Liquidator) [2023] FCAFC 146 Appeal from: Stone (Liquidator), in the matter of RIC Admin Pty Ltd (in liq) v Mandalinic [2022] FCA 1346

File number: NSD 1022 of 2022

Judgment of: STEWART, MCELWAINE AND BUTTON JJ

Date of judgment: 4 September 2023

Catchwords: CORPORATIONS – application for leave to appeal and appeal from interlocutory decision of single judge – where the appellant, a director of a company in liquidation, filed an affidavit in Supreme Court of New South Wales proceedings commenced by the Deputy Commissioner of Taxation to recover tax-related liabilities including directors penalties for which he was liable under Division 269 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (TAA) – whether a company director can file an affidavit for the purposes of s 268-40 of Schedule 1 to the TAA in director penalty proceedings brought by the Commissioner against the director, which has the effect of reducing or revoking an estimate of liability issued to the company – whether a director of a company in liquidation can file an affidavit for the purposes of s 268-40 of Schedule 1 to the TAA – leave to appeal granted – appeal dismissed

Legislation: Corporations Act 2001 (Cth) ss 9, 198A, 198G, 474, 477, 513A, 513B, 588M(2) Federal Court of Australia Act 1976 (Cth) s 24(1A) Income Tax Assessment Act 1936 (Cth) ss 6, 222AFA, 22AGA, 222AGC, 222AHA, 222AHE, 222AIA, 222AIB, 222AID, 222AIG, 222AIH Income Tax Assessment Act 1997 (Cth) s 1-3(1), subdivision 4-5, 995 Insolvency Practice Schedule (Corporations), Sch 2 to the Corporations Act 2001 (Cth) cll 90-10, 90-15 Taxation Administration Act 1953 (Cth) Sch 1 ss 12-35, 12-40, 16-70, 16-75, 268-1, 268-5, 268-10, 268-15, 268-20, 268-25, 268-30, 268-35, 268-40, 268-45, 268-70, 268-85, 268-90, 286-95, 268-100, 269-15, 269-20, 269-35, 269-40 Explanatory Memorandum, Income Tax Assessment Bill 1996 (Cth) Explanatory Memorandum, Insolvency (Tax Priorities) Legislation Amendment Bill 1993 (Cth) Explanatory Memorandum, Tax Laws Amendment (2012 Measures No. 2) Bill 2012 (Cth) Joint Committee of Public Accounts and Audit, "An Advisory Report on the Delayed Provisions of the Tax Law Improvement Bill (No. 2) 1997"