Dr Musgrove, C.H. v Deputy Commissioner of Taxation [1987] FCA 524

JUDGMENT No. SIA. fil ;

_-NOT_FOR' GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

} ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G19 of 1987 ) - - GENERAL DIVISION - - )

BETWEEN :

DR. CLEMENT H. MUSGROVE Applicant

AND:

DEPUTY COMMISSIONER OF TAXATION

Respondent

CORAM: FOX J.

DATE: 15 SEPTEMBER 1987

REASONS FOR JUDGMENT EX TEMPORE

FOX J.

This is an application under the Administrative

Decisions Judicial Review Act 1977 which it is now agreed relates

only to a decision in relation to a request that s.206 of the Income Tax Assessment Act 1936 ("the Act") be applied by the

Commissioner.

The case has its origins in s.201 and s.177 of the Act which have the consequence that the Commissioner is able to recover tax notwithstanding there has been objection to the relevant assessment or assessments, and that they have been

referred to an appropriate tribunal for adjudication. This is

Loess ge wa the

really a collateral challenge to the operation of those sections.

It is regrettable, I think, that the Court's time, and

indeed, the time of the profession, should have to be occupied in

_this way, but that is the way it is, especially when there is a

long delay, as I understand there is, in the hearing of taxation cases referred to the Administrative Appeals Tribunal. There is

less delay' in the cases that come directly to this Court.

The applicant applied for an extension of time for payment of the relevant assessments pursuant to s.206(1) of the Act, the intention being that time for payment would be extended until judicial or tribunal processes had been exhausted. The decision of the respondent to refuse the applicant's application was made on 21 October 1986 and communicated to the applicant by letter of that date. The relevant assessments relate to the income tax years ending 30 June 1980, 1981, 1982, 1983 and 1984. IT understand that because of the way payments to the Tax Office were appropriated, the 1985 and 1986 assessments have been met. The total amount said to be outstanding is $62,742.78 and there is anaction to recover this amount pending in the District Court. It includes the amounts of the primary assessments and