Chippendale Printing Co Pty Ltd v Deputy Commissioner of Taxation (No 2) [1995] FCA 567

CATCHWORDS TAXATION - sales tax - alleged overpayment by manufacturer of sales tax - whether "passing on" provision of sales tax legislation denies a taxpayer a right of refund or recovery for tax overpaid under general law principles - whether the statutory remedial regimes are an exclusive "code" of remedies available in a case of "mere overpayment". CORPORATIONS - statutory demand - alleged overpayment by company of sales tax - whether counterclaim, set-off or cross-demand by company against Commissioner for amount of overpayment. Sales Tax Assessment Act (No 1) 1930, s 26. Sales Tax Procedure Act 1934, ss 12A and 12C. Taxation Administration Act, 1953. Sales Tax Assessment Act, 1992 s 51. Otto Australia Pty Ltd v Commissioner for Taxation (1990) 25 FCR 257 (FCA, Lockhart J). Otto Australia Pty Ltd v Commissioner for Taxation (1991) 28 FCR 477 (FCA/FC). Precision Pools Pty Ltd v Commissioner of Taxation (1992) 37 FCR 554 (FCA/Spencer J). Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243 (FCA/FC). David Securites Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. Commissioner of State Revenue v Royal Insurance Ltd (1994) 126 ALR 1 (HC). CHIPPENDALE PRINTING CO PTY LTD v DEPUTY COMMISSIONER OF TAXATION (No 2) No NG 3388 of 1994. CHIPPENDALE PRINTING CO PTY LTD v THE COMMONWEALTH OF AUSTRALIA (No 2) No NG 147 of 1995 Lindgren J Sydney 4 August 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) GENERAL DIVISION ) No NG 3388 of 1994 IN THE MATTER OF: CHIPPENDALE PRINTING CO PTY LTD AUSTRALIAN COMPANY NO: 001 265 372 BETWEEN: CHIPPENDALE PRINTING CO PTY LTD (ACN 001 265 372) Applicant AND: DEPUTY COMMISSIONER OF TAXATION Respondent No NG 147 of 1995 BETWEEN: CHIPPENDALE PRINTING CO PTY LTD (ACN 001 265 372) Applicant AND: THE COMMONWEALTH OF AUSTRALIA First Respondent COMMISSIONER OF TAXATION Second Respondent CORAM: Lindgren J PLACE: Sydney DATE: 4 August 1995 MINUTE OR ORDERS THE COURT IN PROCEEDINGS NO: NG 3388 of 1994 Chippendale Printing Co Pty Ltd v Deputy Commissioner of Taxation. 1. ORDERS that the respondent's statutory demand dated 19 July 1994 in the sum of $194,472.48 be varied by substitution of the figure of $185,992.93 for $194,472.48 wherever that figure appears, and by alteration of page 2 of the demand in conformity with the schedule to these orders, and that time for compliance with the demand as so varied be extended to 21 August 1995. 2. DECLARES that the said demand had effect, as varied by Order 1 and the schedule to these orders, as from the date when the demand was served on the applicant. 3. ORDERS that the application otherwise be dismissed. 4. ORDERS that the applicant pay the respondent's costs. NG 147 of 1995 Chippendale Printing Co Pty Ltd v The Commonwealth of Australia & Anor. 1. ORDERS that the order made on 5 May 1995 that certain questions be decided separately from any other question in the proceedings be set aside. 2. ORDERS that on the facts in paras (a), (b), (d), (e), (f) and (g) below ("the Agreed Facts") being agreed to by the parties, questions 1 and 2 below be decided separately from any other question in the proceedings on the assumption that the facts alleged by the applicant and referred to in para (c) below are true ("the Assumption"): (a) The applicant was during the period 1 July 1991 to 31 December 1992 ("the first period") and during the period 1 January 1993 to 30 June 1994 ("the second period") a manufacturer of goods ("the subject goods") which it sold by retail. (b) In respect of the sales of the subject goods made during each of the first period and the second period the applicant paid sales tax to the second respondent. (c) The applicant alleges that by reason of a mistake on its part the applicant paid to the second respondent in each of the first period and the second period an amount of sales tax which, by an amount ("the overpaid sales tax"), was in excess of the amount which under applicable sales tax legislation it was required to pay in respect of its sales of the subject goods. (d) The sales tax so paid by the applicant to the second respondent (including the allegedly overpaid sales tax) was passed on by the applicant to the purchasers of the subject goods and has not been refunded by the applicant to the purchasers to whom it was passed on. (e) The basis upon which the applicant calculated its sales tax liability in respect of the subject goods was not at the time of payment disclosed or known to the second respondent. (f) The applicant has made an application to the second respondent under the sales tax legislation applicable during each of the first period and the second period for a refund of the overpaid sales tax. (g) The applicant has tendered to the Court the undertaking comprised in the Affidavit of 1 March 1995 of Edwin Murrell Gardiner and in paragraph 35 of his affidavit of 30 November 1994, copies of which are attached. 1. On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the first period deny to the applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the first period? 2. On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the second period deny to the applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the second period?