Australia and New Zealand Banking Group Limited v The Commissioner of Taxation [2003] FCA 1410

FEDERAL COURT OF AUSTRALIA

Australia and New Zealand Banking Group Limited v The Commissioner of Taxation [2003] FCA 1410

INCOME TAX – Determination under s 177F(1) of Part IVA of the Income Tax Assessment Act 1936 (Cth) – Whether Commissioner knew at the time of the assessment that the assessment was excessive because taxable income was overstated by him – Whether the Commissioner was bound in the circumstances to make a compulsory adjustment under s 177F(3) – Whether Commissioner was bound to issue an assessment for the bottom line amount – Whether assessment tentative or provisional – Whether assessment not made bona fide INCOME TAX– Whether open to the taxpayer to challenge the authority of the officer who made the determination under s 177F(1) JUDICIAL REVIEW – Whether s 175 and subs 177(1) protected the assessment in a proceeding under s 39B of Judiciary Act 1903 (Cth) – certified copy of the assessment produced pursuant to s 177(1) of the Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1936 (Cth), Part IVA, ss 177F, 177C, 177D, 177G Judiciary Act 1903 (Cth), s 39B Commissioner of Taxation v Stokes (1996) 72 FCR 160 applied R v Hickman; ex parte Fox (1945) 70 CLR 59 considered Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation (2003) 196 ALR 692 followed Federal Commissioner of Taxation v S Hoffnung & Co Ltd (1928) 42 CLR 39 applied Batagol v Commissioner of Taxation (1963) 109 CLR 243 referred Henderson v Commissioner of Taxation (1970) 119 CLR 612 referred Commissioner of Taxation v Prestige Motors Pty Ltd (1994) 181 CLR 1 referred Commissioner of Taxation v Ryan (2000) 201 CLR 109 referred Commissioner of Taxation v Dalco (1990) 168 CLR 614 referred Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 referred Commissioner of Taxation v Mochkin [2003] FCAFC 15; 2003 ATC 4,272 referred Dan v Federal Commissioner of Taxation 2000 ATC 4,350 followed Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 applied Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 applied F J Bloemen Pty Ltd v Commissioner of Taxation (1981) 147 CLR 360 applied Stokes v Federal Commissioner of Taxation (1996) 136 ALR 632 referred Commissioner of Taxation v Stokes (1996) 72 FCR 160 referred R v Commissioner of Taxation (WA); Ex parte Briggs (1986) 12 FCR 301 referred McCleary v Federal Commissioner of Taxation 97 ATC 4,266 referred Briglia v Federal Commissioner of Taxation 2000 ATC 4,247 referred Madden v Madden (1996) 65 FCR 354 referred Sunrise Auto Ltd v Commissioner of Taxation (1995) 61 FCR 446 referred Hoare Bros Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302 referred Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175 referred and distinguished Pickering v Federal Commissioner of Taxation 97 ATC 4,893 referred San Remo Macaroni Company Pty Ltd v Federal Commissioner of Taxation 99 ATC 5,138 referred Commissioner of Taxation v Jackson (1990) 27 FCR 1 referred Metal Manufactures Ltd v Federal Commissioner of Taxation 99 ATC 5,229 followed Commissioner of Taxation v Australia and New Zealand Savings Bank Ltd (1994) 181 CLR 466 referred Kolotex Hosiery (Australia) Pty Ltd v Commissioner of Taxation (1975) 132 CLR 535 referred Kellow-Falkiner Pty Ltd v Federal Commissioner of Taxation (1928) 34 ALR 276 referred McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263 referred Meredith v Federal Commissioner of Taxation 2001 ATC 4,595 referred Meredith v Commissioner of Taxation (2002) 192 ALR 418 applied AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) v THE COMMISSIONER OF V 547 of 2002 KENNY J 4 DECEMBER 2003 MELBOURNE