Re Tripp, Alan Terence Ex Parte Deputy Commissior of Taxation v Barnes, John Craven [1987] FCA 796

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IN THE FEDERAL COURT OF AUSTRALIA

) GENERAL DIVISION ) BANKRUPTCY DISTRICT OF THE STATE )

)

OF VICTORIA

No. 194 of 1985

RE: ALAN TERENCE TRIPP

A Bankrupt

EX PARTE: DEPUTY COMMISSIONER OF TAXATION

Applicant

AND: JOHN CRAV:IN BARNES

Respondent

CORAM: Jenkinson J. PLACE: Melbourne DATE: 1 September, 1987

REASONS FOR JUDGMENT

In my opinion the reasoning of Lush J. in The

Commonwealth v. Duncan 81 A.T.C. 4228 answers the questions which

have been raised and discussed in this case. The circumstance that Lush J. was concerned with the significance of s.177 of the

Income Tax Assessment Act 1936 in relation to proofs of debt under

the Companies Act 1961, a State Act, whereas I am concerned of course with the application of s.177 in relation to a Commonwealth Act, the Bankruptcy Act 1966, and one expressed, as Mr. Barnes has pointed out, to bind the Crown, is not for these purposes a material distinction, in my opinion. In any legal proceeding in

this country in which the liability of a person to a debt arising

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by way of assessment under the Income Tax Assessment Act is in

issue proof of the liability will be governed by the provisions of

s.177 of the Income Tax Assessment Act 1936 if the Commissioner

chooses to make use of that provision, and it matters not whether the question of the liability arises under State law or Federal law. The question before me is just such a question and I follow

respectfully the reasoning of Lush J. in The Commonwealth v.

Duncan to hold that the adduction of evidence before the Court of certified extracts of the relevant notices of assessment compel me to uphold the appeal and to accept the proof of debt. It is unnecessary for me to decide whether or not a trustee exercising

the function conferred by s.102 of the Bankruptcy Act 1966 to

determine whether or not to admit a proof of debt is also constrained by the operation of s.177, but I point out for what it is worth that Lush J. specifically dealt with that question in his reasons for judgment, and I have no reason whatever to doubt that what he said in that case would apply equally and without any distinction of substance toa trustee exercising the function