Trylow v Commissioner of Taxation [2004] FCA 446

FEDERAL COURT OF AUSTRALIA

Trylow v Commissioner of Taxation [2004] FCA 446 INCOME TAX – failure to deduct group tax – penalty imposed under s 221EEA of the Income Tax Assessment Act 1936 - whether persons were sub-contractors or employees of the taxpayer – sham and fraud – "bodgie" companies in the building and construction industry – employees paid via a cheque-cashing company ADMINISTRATIVE LAW – applications under Part IVC of the Taxation Administration Act 1953 –whether Federal Court may consider whether penalty under Income Tax Assessment Act 1936 was correctly imposed – whether the Federal Court is limited to material that was before the Tax Commissioner EVIDENCE – tendency and coincidence – s 97 of the Evidence Act 1995 (Cth) – evidence of dealings by other employers with the "bodgie" companies – evidence was probative of the companies' business practice and not tendency evidence Income Tax Assessment Act 1936 (Cth) ss 221EAA, 221N, 221YHD, 221YHDA, 221C Taxation Administration Act 1953 (Cth) Pt IVC Federal Court RulesO 52B r 5(a)(v) Evidence Act 1995 (Cth) ss 56, 95, 97 Stergis v Commissioner of Taxation (1989) 86 ALR 174 referred to Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 cited Richardson v Commissioner of Taxation (1932) 48 CLR 192 referred to Temples Wholesale Flower Supplies Pty Ltd v Federal Commissioner of Taxation (1991) 29 FCR 93 referred to Snook v London and West Riding Investments Ltd [1967] 2 QB 786 cited Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) FCR 449 cited Copperart Pty Ltd v Commissioner of Taxation [1993] 93 ATC 4779cited R v Boardman [1975] AC 421 cited Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 referred to Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 referred to Jones v Dunkel (1959) 101 CLR 298 cited Hollis v Vabu Pty Ltd (2001) 207 CLR 21 referred to Briginshaw v Briginshaw (1938) 60 CLR 336 referred to