Russell v Commissioner of Taxation of the Commonwealth of Australia (No 2) [2009] FCA 1469

FEDERAL COURT OF AUSTRALIA

Russell v Commissioner of Taxation of the Commonwealth of Australia (No 2) [2009] FCA 1469 TAXATION – Whether Court has power to remit a matter to the Commission of Taxation to amend an income tax assessment so as to increase the amount of an appellant taxpayer's taxable income for a given income year – Neither party seeking order of remission for this purpose – Held question of whether Court has the power remains an open question – Held – in appropriate in the circumstances to determine question or order remitted. COSTS – Whether costs should be awarded on a percentage basis according to the relative success of each party at trial – Held award of costs on a percentage basis the appropriate method – Where appellant self-represented - Held appellant not entitled to award of costs in respect of the preparation and presentation of his case – Whether appellant entitled to disbursements related to his appearance – Held no power to award such disbursements - Whether appellant entitled to disbursements in respect of a witness – Held power to award such disbursements – Costs awarded on a 1/3:2/3 basis in favour of the respondent Commissioner of Taxation, subject to set off of appellant's permissible disbursements Federal Court of Australia Act 1976 (Cth) s 43 Income Tax Assessment Act 1936 (Cth) ss 170, 190, 199, 200B Income Tax Assessment Act 1997 (Cth) s 86-15(2) International Tax Agreements Act 1953 (Cth) Taxation Administration Act 1953 (Cth) ss 14ZY, 14ZZP, 14ZZQ, 14ZZR Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth) Russell v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 1224 considered Commissioner of Taxation v ANZ Savings Bank Ltd (1994) 181 CLR 466 considered Russell v Commissioner of Taxation (2008) 168 FCR 330 considered DB Rreef Funds Management Ltd v Commissioner of Taxation (2005) 218 ALR 144 considered Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 applied Cachia v Hanes (1993-1994) 179 CLR 403 applied Scanlan v Swan (1982) 61 FLR 468 considered Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 1) (1991) 28 FCR 379 cited ANTHONY WHITWORTH RUSSELL v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA