Binetter v Commissioner of Taxation [2003] FCA 687

FEDERAL COURT OF AUSTRALIA

Binetter v Commissioner of Taxation [2003] FCA 687 INCOME TAX - PARTICULARS AND DISCOVERY - whether Commissioner should be ordered to give particulars of the scheme or schemes relied upon as falling within Part IVA of the Income Tax Assessment Act 1936 (Cth) – whether Commissioner should be required to discover documents which were before the person making determinations under s 177F(1) or s 177F(3) of the Act – need for issues to be defined both for the benefit of the parties to litigation and for the benefit of the Court. Income Tax Assessment Act 1936 (Cth), s 177A, s 177F(3) Federal Court Rules, O 52A, O 51B r 5 Jackson v Federal Commissioner of Taxation (1989) 89 ATC 4429 approved Federal Commissioner of Taxation v Peabody (1994) 91 CLR 359 approved GERDA BINETTER v COMMISSIONER OF TAXATION N 1391 OF 2002 HILL J 7 JULY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1391 OF 2002

BETWEEN: GERDA BINETTER

APPLICANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 7 JULY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondent notify the applicant on or before 25 July 2003 ("the notification date") which of the determinations referred to in paragraphs 25 and 26 of the respondent's Statement of Facts, Issues and Contentions ("the Statement"), under the heading "Facts", the Commissioner to proposes to rely upon at the hearing. 2. If the Commissioner proposes to rely upon more than one determination in the alternative, the respondent notify the applicant by the notification date which of the determinations referred to in paragraphs 25 and 26 of the Statement it proposes to rely upon as alternatives. 3. Subject to any claim for privilege, the respondent make available for inspection by the applicant on or before 25 July 2003 any document or other material which was before Mr Maloney, or otherwise the person making the determination or determinations referred to in Orders 1 and 2, at the time of making the determinations. 4. On or before the notification date the respondent in writing identify the steps alleged to comprise any scheme within the meaning of s 177A of the Act which the respondent proposes to rely upon at the hearing indicating if a particular scheme is intended to be relied upon in the alternative. 5. The respondent shall on or before the notification date advise the applicant whether it is alleged that the respondent made a determinations or determinations under s 177F(3) relevant to the assessment made by the respondent, and if it so alleged the respondent advise the applicant of: (a) the name of the officer who made the determination; (b) the date the determination was made; (c) the terms in which the determination was made. 6. The respondent shall on or before the notification date produce for inspection by the applicant the documents or other material before the officer who made any determination which the respondent alleges was made and the time such determination was made. 7 The applicant file and serve its Statement of Facts, Issues and Contentions to the extent they differ from the Commissioner's Statement, on or before 22 August 2003. 8 The applicant file and serve all affidavits upon which the applicant proposes to rely on or before 29 August 2003. 9. The Respondent file and serve all affidavits upon which he proposes to rely on or before 3 October 2003. 10. The matter be stood over for directions until 9.30 am on 10 October 2003 and the directions hearing for 11 July 2003 be vacated. 11. The respondent pay the applicant's costs of the motion. 10. If any party shall fail to comply with these orders and that failure shall continue for a period of seven days, the party not in default shall notify my associate forthwith when the matter may be restored to the list but without prejudice to liberty to restore on 48 hours notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA