Daihatsu Australia Pty Limited v Commissioner of Taxation [2001] FCA 588

FEDERAL COURT OF AUSTRALIA

Daihatsu Australia Pty Limited v Commissioner of Taxation [2001] FCA 588 INCOME TAX – assessment – determinations under s 136AD of the Income Tax Assessment Act 1936 (Cth) – notice of amended assessment – validity – conclusiveness – application of ss 175 and 177 of the Income Tax Assessment Act 1936 (Cth) – "Hickman principle" – whether bona fide attempt to assess – whether assessment made in bad faith – whether failure to issue position paper raises inference of bad faith – whether failure to comply with Taxation Rulings raises inference of bad faith INCOME TAX – transfer pricing – determinations made by Commissioner that taxpayer not dealing at arm's length – calculation of arm's length price – application of s 136AD of the Income Tax Assessment Act 1936 (Cth)

Judiciary Act 1903 (Cth) s 39B Income Tax Assessment Act 1936 (Cth) ss 136AA, 136AD, 175, 177 Taxation Administration Act 1953 (Cth) Part IVC, s 14ZZO Income Tax (International Agreements) Act 1953 (Cth) ss 4, 8, Sch 6 Federal Court Rules O 10 r 1(2)(j)

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 applied Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807 followed Deputy Commissioner of Taxation v Richard Walter (1995) 183 CLR 168 referred to Sunrise Auto Ltd v Commissioner of Taxation (1995) 61 FCR 446 referred to Briglia v Federal Commissioner of Taxation 2000 ATC 4247 referred to Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 referred to Dan v Federal Commissioner of Taxation 2000 ATC 4350 referred to Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175 referred to R v Commissioner of Taxation (WA); Ex parte Briggs (1986) 12 FCR 301 referred to O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219 referred to Holloway v McFeeters (1956) 94 CLR 470 applied Madden v Madden (1996) 65 FCR 354 applied Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 referred to Cabal v Attorney-General of the Commonwealth [2001] FCA 583 referred to Aronson & Dyer, Judicial Review of Administrative Action (2nd ed, 2000) at 689ff Aronson, "The Resurgence of Jurisdictional Facts" (2001) 12 Public Law Review 17 DAIHATSU AUSTRALIA PTY LIMITED v COMMISSIONER OF TAXATION N908 of 2000 FINN J SYDNEY 24 MAY 2001