Fabry v Commissioner of Taxation of the Commonwealth of Australia [2003] FCA 1043

FEDERAL COURT OF AUSTRALIA

Fabry v Commissioner of Taxation of the Commonwealth of Australia [2003] FCA 1043

TAXATION – assessments – objections disallowed – objection decisions referred to the Administrative Appeals Tribunal – after the reference the Commissioner made Pt IVA determinations and gave effect to the determinations by issuing amended assessments which did not alter the taxable income and tax payable on the assessments – whether the amended assessments involved an alteration in or addition to the assessments – whether the Administrative Appeals Tribunal, rather than the Commissioner, was the sole repository of the powers and discretions exercisable under Pt IVA upon the objection decisions being referred to the Tribunal – whether the amended assessments were valid WORDS AND PHRASES – "generalia specialibus non derogant"

Judiciary Act 1903 (Cth) s 39B Income Tax Assessment Act 1936 (Cth) ss 170(1), 173, 175, 177F(1) and 177G(1) Taxation Administration Act 1953 (Cth) ss 14ZV and 14ZZ Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 26 and 43

Fletcher v Commissioner of Taxation (1988) 19 FCR 442 - cited Commissioner of Taxation v Jackson (1990) 27 FCR 1 - applied Maybury v Plowman (1913) 16 CLR 468 - cited The Commissioner of Taxation of the Commonwealth of Australia v Australia and New Zealand Savings Bank Limited (1994) 181 CLR 466 - cited R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - cited Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168 – distinguished Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 - applied Commissioner of Taxation v Stokes (1996) 72 FCR 160 - considered Puzey v Commissioner of Taxation [2003] FCAFC 197 - cited Puzey v Federal Commissioner of Taxation (2002) 51 ATR 616 - cited R v Moodie; Ex parte Mithen (1977) 17 ALR 219 – considered Re Rebeiro and Comcare (1996) 44 ALD 632 - cited Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 - cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 - cited Smith v The Queen (1994) 181 CLR 338 - applied Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 - cited Saraswati v The Queen (1991) 172 CLR 1 - cited Fitzgerald v Champneys (1861) 2 John & H 31 – cited Institute of Patent Agents v Joseph Lockwood [1894] AC 347- applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – cited