Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394

FEDERAL COURT OF AUSTRALIA

Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394

TAXATION – income tax assessment – where applicant company trustee for family trust – where trust realised capital gain from the sale of real property – where respondent issued assessment and penalty assessment – where the applicant challenges the assessment and penalty assessment – where applicant claims to have provided package of information to respondent prior to assessment – where applicant claims respondent did not take information into account – where applicant lodged notice of objection with respondent – where respondent disallowed objection and upheld assessment – where applicant claims respondent failed to provide particulars of assessment and penalty assessment – where applicant claims failure to consider package of information amounted to bad faith or breach of rules of procedural fairness – where applicant makes other claims – application by respondent for summary dismissal of proceeding – whether applicant's claims arguable – whether respondent under an obligation to accord procedural fairness before making assessment – whether breach of rules of procedural fairness a basis for relief under s 39B of Judiciary Act 1903 (Cth) in circumstances – effect of ss 175 and 177 of Income Tax Assessment Act 1936 (Cth). Held: no obligation on respondent to provide particulars – no arguable case of bad faith – none of the matters identified in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598established – no basis to challenge assessment outside Hickman provisos – applicant's other claims not arguable – application allowed – proceeding dismissed. Federal Court of Australia Act 1976 (Cth) s 31A Freedom of Information Act 1982 (Cth) s 15 Income Tax Assessment Act 1997 (Cth) ss 102-5, 104-10 Income Tax Assessment Act 1936 (Cth) ss 97, 99A, 101, 166, 167, 175, 177 Judiciary Act 1903 (Cth) s 39B Taxation Administration Act 1953 (Cth) Part IVC Australia and New Zealand Banking Group Limited v Commissioner of Taxation (2003) 137 FCR 1 cited Briglia v Commissioner of Taxation (2000) 44 ATR 166 cited Deputy Commissioner v Richard Walter Pty Ltd (1995) 183 CLR 168 applied Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 cited Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 considered R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 applied HARITOPOULOS PTY LTD v DEPUTY COMMISSIONER OF TAXATION SAD 54 OF 2006