Deputy Commissioner of Taxation v Mostyn, J.J. [1987] FCA 688

JUDGMENT No. eosy 1.

Sy

\ "pe t say if 2k \ © j CATCHWORDS ¥ 2 af "NS ~~ . ~ . yt >. Tncome tax - additional tax - Commissioner's power to remit

additional tax "either before or after makina anv assessment" imposition of additional tax by Commissioner unlawful - failure of taxpayer to prosecute appeal from disallowance of objection

against imposition of additional tax - request by taxpayer that additional tax be remitted - whether Commissioner entitled to

refuse to remit "because of absence of power to amend assessment

- whether authorities on construction of 5.67 of Income Tax

Assessment Act 1922 govern construction of s.226 of Income Tax

Assessment Act 1936.

Income Tax Assessment Act 1922. s. 4&7,

Income Tax Assessment Act 1936, ss.170, 226.

DEPUTY COMMISSTONER OF TAXATION v. JOHN JOSEPH MOSTYN

No. G261 of 1987

Court: Bowen, C.d., Sheppard and Wilcox JJ.

Date : 3 December 1987

Place: Sydney

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IN THE FEDERAL COURT OF AUSTRALIA

) } NEW SOUTH WALES DISTRICT REGISTRY ) No. G261 of 1987 ) )

GENERAL DIVISTON

On appeal from a single Judge

of the Federal Court of

Australia

BETWEEN:

DEPUTY COMMISSTONER OF TAXATION Appellant

AND:

JOHN JOSEPH MOSTYN

Respondent

MINUTES OF ORDER

JUDGES MAKING ORDER: Bowen C.Jd., Sheppard and Wilcox JJ. DATE OF ORDER i 3 December 1987 WHERE MADE : Sydney

THE COURT ORDERS THAT: -

1.

2s

The appeal be dismissed,

The cross-appeal be allowed in part.

The order made by Beaumont J. on 28 Mav 1987 be varied bv adding Ehereto a declaration that the amount of additional tax imposed by the appellant in respect of the income tax vear ending 30 June 1979 is not due and payable.

The cross-appeal be otherwise dismissed.

The appellant pay the respondent's costs of the appeal

and cross-appeal.

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NOTE:

2. Settlement and entry of orders is dealt with in Order 36