Cohen v Commissioner of Taxation [2000] FCA 833

FEDERAL COURT OF AUSTRALIA

Cohen v Commissioner of Taxation [2000] FCA 833

INCOME TAX – employee of insurance company paid by way of fortnightly advance debited to an account and commissions due to him were to be credited to that account. No debit balance was repayable – whether fortnightly payments income when received – whether provisions of Fringe Benefits Tax Assessment Act 1986 (Cth)operated to exclude advance payments as income because any negative balance in the account was written off when employment ceased – whether Tribunal erred in remitting penalty where reasons do not disclose under what section the penalty arose. Administrative Appeals Tribunal Act 1975 (Cth), s 44 Income Tax Assessment Act 1936 (Cth), s 51(1) Fringe Benefits Tax Assessment Act 1986 (Cth), s 14 Federal Commissioner of Taxation v Steeves Agnew & Co (Vic) Pty Ltd (1951) 82 CLR 408 distinguished Australian Mutual Provident Society v Allan (1978) 52 ALJR 407 cited Arthur Murray (NSW) Pty Ltd v Federal Commissioner of Taxation (1965) 114 CLR 314 discussed Jagelman v Commissioner of Taxation (1995) 95 ATC 4055 cited

PHILLIP LAWRENCE COHEN v

COMMISSIONER OF TAXATION

N 1505 of 1999 HILL J 5 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1505 OF 1999

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: PHILLIP LAWRENCE COHEN

APPLICANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 5 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. The orders of the Administrative Appeals Tribunal be set aside so far as they concerned the remission of penalty tax to 10% of the tax payable on the amount of $23,185. 3. The matter be remitted to the Tribunal to consider in accordance with law whether additional tax, if any, should be assessed under ss 226G, 226H or 226K of the Income Tax Assessment Act 1936 (Cth) and, if so, whether the whole or any part thereof should be remitted. 4. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.