Federal Court of Australia
[9
CATCHWORDS
Income tax - Appeal by Commissioner from @ecision of Board of Review - How question of law shown - Whether Commissioner should begin - Burden on taxpayer of proving Commissioner's assessment 18 excessive.
Appeal - Preliminary question decided by Supreme Court -
Whether appeal lies to Federal Court from such decisions.
Income Tax Assessment Act 1936, ss.193 and 196.
THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v. MANTLE TRADERS PTY. LIMITED
No. G58 of 1980
Coram: Bowen C.J., Franki and Brennan JJ.
15 December 1980.
Sydney.
IN THE FEDERAL COURT OF AUSTRALIA)
) NEW SOUTH WALES DISTRICT REGISTRY) No. G58 of 1980
) GENERAL DIVISION )
ON APPEAL from the Supreme Court of New South Wales
BETWEEN :
THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
Appellant
AND:
MANTLE TRADERS PTY. LIMITED
Respondent ORDER JUDGES MAKING ORDER: Bowen C.J., Frank1i and Brennan JJ. DATE OF ORDER: 15 December 1980. WHERE MADE: Sydney.
THE COURT ORDERS THAT:
1. The appeal be allowed. 2. The orders of the Supreme Court of 24 June 1980 be set
aside.
3. The questions in the special case stated in the Supreme
Court on 23 June 1980 be answered as follows:
Question 1
Whether at the hearing of the proceedidngs
(a) (b)
the evidentiary onus;
the ultimate onus;
1s to be borne by the appellant or by the respondent.
Answer 1
(a)
(b)
There 1s an initial burden of adducing evidence resting on the Commissioner.
Subject to any question of jurisdiction, 1f the Commissioner's assessment 1s in evidence before the Supreme Court, the taxpayer throughout the proceedings before the Supreme Court bears the burden of proving the assessment 1S excessive, being limited in this regard to the grounds
stated in the notice of objection.
Question 2
Whether at the hearing the appellant or the respondent
should begin.
Question 3
Whether, if the appellant should begin, he 1s entitled simply to tender the assessments in order to require the
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