May, Anthony Henry v The Deputy Commissioner of Taxation for the Commonwealth of Australia [1998] FCA 1247

FEDERAL COURT OF AUSTRALIA INCOME TAX – application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of decision to issue notice under s 264(1)(a) of the Income Tax Assessment Act 1936 (Cth) ("the Act") - notice issued against applicant, a member of a firm of solicitors - notice required applicant to furnish eleven categories of information in relation to employee share acquisition plans, employee benefits trusts or similar plans "established or prepared" by the firm - statement of reasons provided by respondent specified purpose as "to determine the taxation implications applicable to arrangements established by the firm for its clients" - whether categories of documents in schedule to notice fell outside the purpose identified in the notice so that respondent had improperly exercised his power under the Act, taken into account an irrelevant consideration or made an error of law - whether the information sought was for the general purpose of enabling the respondent to administer properly the Act and to enable the respondent to perform his functions under the Act - consideration of meanings of "established" and "prepared". ADMINISTRATIVE LAW – judicial review of decision of respondent to issue notice under s 264(1)(a) of the Act - determination of purpose for which the power was exercised - whether respondent exercised power for an improper purpose, on the basis of irrelevant considerations or an error of law - natural justice - procedural fairness - whether overriding of solicitor and clients' contractual relationship of confidence by the service of the notice required the notice to provide a procedure for clients to challenge the validity of the notice. Administrative Decisions (Judicial Review) Act 1977 (Cth): s 5, s 13 Income Tax Assessment Act 1936 (Cth): s 264(1)(a), s 264(1)(b) The Commissioner of Taxation of the Commonwealth of Australia v The Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 - applied Eighth Oupan Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 559; on appeal (1985) 85 ATC 4,307 - followed Tagle v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 379 - considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - considered and applied Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 (sub nom Perron Investments Pty Ltd v Deputy Commissioner of Taxation (1989) 20 ATR 1299) - considered and applied Geosam Investments Pty Ltd v Australia and New Zealand Banking Group Ltd (1979) 25 ALR 445 - considered and applied Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 - followed Allen Allen & Hemsley v Deputy Commissioner of Taxation (1988) 88 ATC 4,734 - referred to Norwest Holst Ltd v Secretary of State for Trade [1978] 1 Ch 201 - referred to Minosea Pty Ltd v ASC (1994) 14 ACSR 642 - followed ANTHONY HENRY MAY v DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA No 368 of 1998 GOLDBERG J MELBOURNE 1 OCTOBER 1998