Elias v Commissioner of Taxation [2002] FCA 1132

FEDERAL COURT OF AUSTRALIA Elias v Commissioner of Taxation [2002] FCA 1132 INCOME TAX – controlling interest superannuation arrangement – applicant applied to Commissioner for deferment of time for payment of tax under s 255-10 of the Taxation Administration Act 1953 (Cth) – applied at same time for a remission of the general interest charge under s 8AAG of the Taxation Administration Act 1953 (Cth) – Commissioner not satisfied general interest charge should be remitted – whether decision not to remit the general interest charge was a reviewable error ADMINISTRATIVE LAW – judicial review – application under ss 5(1), (2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of Commissioner's decision not to remit the general interest charge – whether unreasonable delay in making of decision – fairness as between taxpayers – allegation of unequal treatment – whether decision infected by Wednesbury unreasonableness – whether apparent bias – whether decision-maker took irrelevant considerations into account – no reviewable error Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1), 5(2), 5(2)(b), 5(2)(f), 5(2)(g), 7, 13 Taxation Administration Act 1953 (Cth) s 8AAB(4), 8AAG, 8AAG(1), 8AAG(2), 8AAG(3), 8AAG(4), 8AAG(4)(c), 8AAG(5), 8AAG(5)(a), 8AAG(5)(b), Schedule 1 s 255-10 Income Tax Assessment Act 1936 (Cth) s 204(3) Elias v Commissioner of Taxation [2002] FCA 845 referred to Harris v Commissioner of Taxation [2001] FCA 1689 referred to Harris v Federal Commissioner of Taxation [2002] FCAFC 226 referred to Bellinz v Commissioner of Taxation (1998) 84 FCR 154 cited Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1970-1971) 127 CLR 106 cited Webb v Commissioner of Taxation (No 2) (1993) 47 FCR 394 at 404-405 cited Nestle Australia Ltd v Commissioner of Taxation (1987) 16 FCR 167 cited Glennan v Commissioner of Taxation [1999] FCA 297 applied Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 applied Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121 cited I & E Affairs v Kurtovic (1990) 21 FCR 193 cited Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation (2001) 182 ALR 239 referred to Cubillo v Commonwealth (2001) 112 FCR 455 cited Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424 applied Aronson and Dyer Judicial Review of Administrative Action 2nd Ed 2000