Shail v Commissioner of Taxation [2007] FCA 655

FEDERAL COURT OF AUSTRALIA

Shail v Commissioner of Taxation [2007] FCA 655

TAXATION – validity of notice of assessment – whether lack of bona fides – whether issued for an improper purpose – application of the Hickman principle – requirements of service under the Income Tax Regulations 1936 (Cth) ('the Regulations') – whether post office box address can constitute a "physical address" as well as a "postal address" for the purposes of the Regulations Income Tax Assessment Act 1936 (Cth), ss, 175, 177 Income Tax Regulations 1936 (Cth), regs 36, 40 Tax Administration Act 1953 (Cth), Sch 1, s 260-5 FJ Bloemen Pty Ltd v Commissioner of Taxation (1981) 147 CLR 360 cited Briglia v Commissioner of Taxation [2000] ATC 4,247 cited Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 cited Deputy Commissioner of Taxation v Naidoo [1981] 81 ATC 4,537 cited Emhill Pty Ltd v Bonsoc Pty Ltd (2005) 12 VR 129 considered Madden v Madden (1996) 65 FCR 354 followed R v Hickman; Ex parte Fox (1945) 70 CLR 598 cited Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262 applied NURIYE SHAIL v COMMISSIONER OF TAXATION VID 1037 OF 2006

MIDDLETON J

4 MAY 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1037 OF 2006

BETWEEN: NURIYE SHAIL

Applicant

AND: THE COMMISSIONER OF TAXATION OF COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: MIDDLETON J

DATE: 4 MAY 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 Pursuant to s 264(1) of the Income Tax Assessment Act 1936 (Cth) ('ITA Act'), the respondent issued a notice of assessment to the applicant in respect of the year of income ending 30 June 2005. The respondent also issued a notice under s 260-5 of Sch 1 to the Tax Administration Act 1953 (Cth) ('TAA') to each of Jason Real Estate Pty Ltd and Mr Paul Silvestri ('the Garnishee Notices'). Each of the Garnishee Notices sought that any money owed by the party in question to the applicant be paid to the respondent. 2 By notice dated 15 September 2006, the applicant objected to the notice of assessment. 3 By application and statement of claim filed on 20 September 2006 the applicant applied for relief pursuant to s 39B(1) and 39B(1A) of the Judiciary Act 1903 (Cth) and review of the decisions pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).