Commissioner of Taxation v Barnes Development Pty Ltd [2009] FCA 830

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Barnes Development Pty Ltd [2009] FCA 830

TAXATION – application by Commissioner to recover monies alleged due to taxpayers by respondent – taxpayers had substantive taxation liabilities – notices for payment under s 260‑5 of the Taxation Administration Act 1953 (Cth) served on respondent – whether Commissioner entitled to sue respondent upon default for payment of those sums – proper construction of s 260-5 – whether any provision in the Act was contrary to the implication of an entitlement to sue – whether courts express discretionary power, upon conviction of third party in criminal proceedings for failure to comply with notice, to order payment of monies the subject of notice was such a provision to the contrary. Taxation Administration Act 1953 (Cth), Schedule 1, s 260-5 Criminal Code Act 1995 (Cth), s 4.1(2) Income Tax Assessment Act 1936 (Cth), s 218 Corporations Act 2001 (Cth), s 1305 Federal Court of Australia Act 1976 (Cth), s 51A

Ainsworth v CJC (1992) 175 CLR 564 cited Barratt v Howard (1999) 165 ALR 605 cited Bluebottle UK Ltd v Deputy Commissioner of Taxation (2007) 232 CLR 598 discussed Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1discussed Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 248 ALR 693 referred to Deputy Commissioner of Taxation v Lanstel Pty Ltd (1996) 22 ACSR 314 referred to Houssein v Under Secretary of Industrial Relations and Technology (1982) 148 CLR 88cited Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66applied COMMISSIONER OF TAXATION v BARNES DEVELOPMENT PTY LTD

WAD 215 of 2008

GILMOUR J

7 August 2009

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION WAD 215 of 2008

BETWEEN: COMMISSIONER OF TAXATION