Kevin Denlay v Commissioner of Taxation [2010] FCA 1434

FEDERAL COURT OF AUSTRALIA

Kevin Denlay v Commissioner of Taxation [2010] FCA 1434 Citation: Kevin Denlay v Commissioner of Taxation [2010] FCA 1434

Parties: KEVIN VINCENT DENLAY v COMMISSIONER OF TAXATION

File number: QUD 347 of 2010

Judge: LOGAN J

Date of judgment: 17 December 2010

Catchwords: ADMINISTRATIVE LAW – Application under s 39B(1) of the Judiciary Ac7t 1903 (Cth) – Whether purported assessments made by the Commissioner of Taxation were tainted with jurisdictional error due to the conscious maladministration of the Income Tax Assessment Act 1936 (Cth), Income Tax Assessment Act 1997 (Cth) and Taxation Administration Act 1953 (Cth) (Taxation Acts) – Where Commissioner obtained information relating to the Applicants' taxable income from a third party who according to foreign law stole that information – Where Commissioner received that information abroad – Whether Commissioner breached s 400.9 of the Criminal Code 1995 (Cth) in receiving the stolen information – Consideration of Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 Held: The Commissioner has a duty under the Taxation Acts to assess the income of taxpayers from "any other information in his possession, or from any one or more … sources" and is to enjoy "full and free: access for that purpose" – The Commissioner could not then be in breach of s 400.9 if the alleged breach was undertaken with a justification at law – s 10.5 of the Criminal Code 1995 (Cth) and s 166 and s 263 of the Income Tax Assessment Act 1936 (Cth) considered – No conscious maladministration present