Elias v Commissioner of Taxation [2002] FCA 845

FEDERAL COURT OF AUSTRALIA Elias v Commissioner of Taxation [2002] FCA 845 TAXATION – controlling interest superannuation arrangement – applicant applied to Commissioner for a deferment of time for payment of tax under s 255-10 of the Taxation Administration Act 1953 (Cth) – Commissioner refused application having regard to the "ATO Receivables Policy" – whether the Receivables Policy was an impermissible fetter on the Commissioner's statutory discretion – whether the Commissioner took into account an irrelevant consideration – whether the Commissioner failed to take into account relevant circumstances WORDS & PHRASES – "take into account"

Taxation Administration Act 1953 (Cth) Part 4.15, s 8AAD, 8AAG, 8AAG(3), 8AAG(4), 8AAG(5), 14ZZM, 14ZZR, 250-10, 250-25, 255-1, 255-5, 255-10, 255-10(1) Administrative Decisions (Judicial Review) Act 1977 (Cth)s 13 Income Tax Assessment Act 1936 (Cth) s 204, 204(1), 204(3), 204(3)(a), 206 General Interest Charge (Imposition) Bill 1998 (Cth)

Harris v Commissioner of Taxation [2001] FCA 1689 considered Re Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 cited Chumbairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480 cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 applied Ahern v Deputy Federal Commissioner of Taxation (1983) 50 ALR 177 considered Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 applied Harts Fidelity Pty Ltd v Federal Commissioner of Taxation (1999) 42 ATR 438 followed Thurecht v Deputy Federal Commissioner of Taxation (1984) 84 ATC 4,480 considered Barina Corporation Ltd v Deputy Commissioner of Taxation (1985) 6 FCR 368 considered ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 considered Nestle Australia Ltd v Commissioner of Taxation (1987) 16 FCR 167 considered Paul v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 289 applied Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 considered NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 considered