Bazaniak v Deputy Commissioner of Taxation [1999] FCA 864

FEDERAL COURT OF AUSTRALIA

Bazaniak v Deputy Commissioner of Taxation [1999] FCA 864 TAXATION – Appeal on a question of law against decision of the Administrative Appeals Tribunal sitting as the Small Taxation Claims Tribunal – whether Tribunal failed to consider correct or preferable decision on penalty pursuant to s 226J of the Income Tax Assessment Act 1936 (Cth)– whether Tribunal denied procedural fairness by declining an adjournment

Administrative Appeals Tribunal Act 1975 (Cth), ss 24AA, 24AC(1), 44(5) Income Tax Assessment Act 1936 (Cth), ss 167, 175, 176(b), 177(1), 226G, 226J, 227(3)

Taxation Administration Act 1953 (Cth), s 14ZZK(b)(i)

Favaro v Federal Commissioner of Taxation (1997) 97 ATC 4442, cited Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, cited House v The King (1936) 55 CLR 499, distinguished Cranssen v The King (1936) 55 CLR 509, distinguished Comcare Australia v Lees (1997) 151 ALR 647, distinguished Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442, cited Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, cited

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, cited WIESLAWA BAZANIAK v DEPUTY COMMISSIONER OF TAXATION NG 1440 of 1998 JUDGE: SACKVILLE J DATE: 28 JUNE 1999 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1440 OF 1998

BETWEEN: WIESLAWA BAZANIAK

Applicant

AND: DEPUTY COMMISSIONER OF TAXATION

Respondent

JUDGE: SACKVILLE J

DATE OF ORDER: 28 JUNE 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal sitting as the Small Claims Tribunal ("the Tribunal"), made on 25 November 1998, be set aside to the extent that it affirms the objection decision made on 3 July 1998 imposing or confirming the imposition of (a) additional tax in the sum of $1,422.82 pursuant to s 226J of the Income Tax Assessment Act 1936 (Cth) ("ITAA"); and (b) additional tax in the sum of $35.75 pursuant to s 226G of the ITAA. 2. The decision of the Tribunal otherwise be affirmed (but without prejudice to any agreement between the parties relating to the disallowance of the applicant's claim to a superannuation tax rebate). 3. Remit the matter to the Tribunal, differently constituted, but only insofar as it relates to the imposition of additional tax in the sum of $1,422.82 pursuant to s 226J of the ITAA. 4. Direct that the parties be at liberty, subject to any particular rulings by the Tribunal, to adduce further evidence material to the matter remitted pursuant to Order 3. 5. Each party bear his or her costs of the proceedings in this Court.