Isaacs v Commissioner of Taxation [2005] FCA 832

FEDERAL COURT OF AUSTRALIA

Isaacs v Commissioner of Taxation [2005] FCA 832

ADMINISTRATIVE LAW – INCOME TAX – share options granted to employee taxpayer during 1998 fiscal year by employer – taxpayer did not elect for s 139B(2) of the Income Tax Assessment Act 1936 (Cth) to apply in respect of each share option until more than two years after lodging income tax return for the 1998 fiscal year – Commissioner empowered to grant further time for the making of an election under s 139E after lodgement of income tax return – Commissioner refused to grant retroactively further time for that purpose – value of share options increased significantly from time of grant to time of application for further time retroactively to lodge return – taxpayer objected to assessment of taxation for 1998 fiscal year as inadequate – Commissioner disallowed objection – Tribunal declined to review objection decision for want of jurisdiction – whether Commissioner or Tribunal on review authorised to exercise s 139E(2) discretion to grant further time – whether Commissioner authorised to grant further time up to time when election purportedly made – whether exercise of s 139E(2) discretion part of process of assessment of income tax – taxpayer's appeal dismissed Taxation Administration Act 1953 (Cth) Income Tax Assessment Act 1936 (Cth) (as amended) Income Tax Assessment Act 1997 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Bankruptcy Act 1966 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Donaldson v Federal Commissioner of Taxation (1974) 1 NSWLR 627 cited Henderson v Federal Commissioner of Taxation (1969-1970) 119 CLR 612 cited Comcare v Burton (1998) 157 ALR 522 applied Bonavia v Secretary, Department of Social Security (1985) 9 ALD 97 cited Zerna v Comcare (1994) 33 ALD 705 cited Sporting Supplies (Aust) Pty Ltd v Controller-General of Customs (1995) 37 ALD 767 cited Bonnell v Federal Commissioner of Taxation (2001) 47 ATR 1115 cited Re Gowing; Ex parte Deputy Registrar in Bankruptcy (1985) 11 FCR 111 discussed Winter v Deputy Commissioner of Taxation (1987) 18 ATR 307 cited Emanuele v Australian Securities Commission (1997) 188 CLR 114 cited Donne v Lewis (1805) 11 Ves Jun 601 cited Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 applied Stevenson v Federal Commissioner of Taxation (1991) 29 FCR 282 discussed Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 discussed Australian Securities and Investments Commission v Donald (2003) 203 ALR 566 discussed Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Federal Commissioner of Taxation (2003) 75 ALD 321 discussed Intervest Corporation Pty Ltd v Federal Commissioner of Taxation (1984) 3 FCR 591 applied Hadfield Finance Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 249 applied Meredith v Commissioner of Taxation (2002) 125 FCR 308 discussed Harts Australia Ltd v Commissioner of Taxation (2001) 2001 ATC 4572 applied Minister for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325 applied PHILLIP ISAACS v COMMISSIONER OF TAXATION NSD 1030 OF 2004 CONTI J 22 JUNE 2005 SYDNEY