Mostyn, J v The Deputy Commissioner of Taxation [1987] FCA 269

CATCHWORDS

Administrative Law - Income Tax Law - Review of decisions of Commissioner to assess additional tax under s.226(2) and to institute recovery proceedings; taxpayer's claim for remission of additional tax under s.226(3); whether Commissioner made errors of law in deciding to recover additional tax; whether the decision to not remit the additional tax was exempt under Sch.1(#@) of Administrative Decisions (Judicial Review) Act; whether a remission under s.226(3) involves an amendment of the assessment of additional tax; applicability of s.170 to

remissions under s.226(3); procedures for remission separate from the processes of assessment.

JOHN JOSEPH MOSTYN V. THE DEPUTY COMMISSIONER OF TAXATION

No. G414 of 1986

Beaumont, J. Sydney

28 May 1987

|: Z 8: 1AY 1987

~\ FEDERAL COURT OF a AUSTRALIA

PRINCIPAL REGISTRY

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G414 of 1986 ) GENERAL DIVISION ) BETWEEN: JOHN JOSEPH MOSTYN Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION Respondent

MINUTES OF ORDER

Judge making order: Beaumont, J. Date order made: 28 May 1987

Where made: Sydney

THE COURT ORDERS :

1. That the respondent consider the applicant's request for the remission of additional tax

and determine such request 1n accordance with law.

2. That the respondent pay one-half of the applicant's costs.

3. Reserve liberty to apply on seven days' notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G414 of 1986 ) GENERAL DIVISION ) BETWEEN: JOHN JOSEPH MOSTYN Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION Respondent

CORAM: Beaumont, J.

DATED: 28 May 1987

REASONS FOR JUDGMENT

As it stood at material times, s.226(2) of the Income Tax Assessment Act 1936 ("the Act"), provided that, in certain Cases, a taxpayer was liable to pay additional tax. For instance, a taxpayer who included in his return as a deduction for expenditure incurred, an amount in excess of the expenditure actually incurred, was liable to pay as additional tax an amount equal to double the difference between the tax properly payable and the tax that would be payable if it were assessed upon the