Kimche v Commissioner of Taxation [2004] FCA 1108

FEDERAL COURT OF AUSTRALIA

Kimche v Commissioner of Taxation [2004] FCA 1108

PATRICIA CAROL KIMCHE v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA V 807 of 2001

RYAN J

26 AUGUST 2004

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 807 of 2001

BETWEEN: PATRICIA CAROL KIMCHE

Applicant

AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: RYAN J

DATE OF ORDER: 26 AUGUST 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Each of the assessments for the years ended 30 June 1995, 30 June 1996, 30 June 1997, 30 June 1998 and 30 June 1999 be set aside and be remitted to the respondent for recalculation in accordance with law. 2. The costs of the application, including any reserved costs, be reserved to await further submissions from the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 807 of 2001

BETWEEN: PATRICIA CAROL KIMCHE

Applicant

AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: RYAN J

DATE: 26 AUGUST 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicant did not lodge any tax returns for the financial years ending 30 June 1995, 30 June 1996, 30 June 1998 and 30 June 1999. The applicant lodged a tax return for the financial year ending 30 June 1997, showing income of $5,920 received as a sales assistant. 2 In 1999, the respondent conducted an audit of the applicant's taxation affairs for the period 1 July 1994 to 30 June 1999. On 18 July 1999, on completion of the audit, the respondent issued to the applicant Notices of Assessment or, for the year ended 30 June 1997, Amended Assessment, pursuant to s 167 of the Income Tax Assessment Act 1936 (Cth), for the years ending 30 June 1995 through to 30 June 1999 inclusive ("the assessments"). The assessments imposed income tax, medicare levy and penalty tax on the applicant in the amount of $359,912.20. On 6 April 2001, the applicant lodged with the respondent notices of objection against the assessments ("the objections"). On 12 June 2001, the respondent issued a notice of decision disallowing the objections in full ("respondent's decision"). On 8 August 2001, the applicant filed an application in this Court, under Part IVC of the Taxation Administration Act 1953 (Cth), objecting to the respondent's decision. The applicant seeks to have the objections allowed in full, and specifically contends that the income tax and medicare levy should be fully eliminated and the penalty tax reduced to nil.