Borcherdt v Commissioner of Taxation [2014] FCA 56

FEDERAL COURT OF AUSTRALIA

Borcherdt v Commissioner of Taxation [2014] FCA 56 Citation: Borcherdt v Commissioner of Taxation [2014] FCA 56

Appeal from: RJ Borcherdt & GP Scott Trading as Nymboida Native Timbers v Commissioner of Taxation [2011] AATA 939

Parties: RJ BORCHERDT & GP SCOTT TRADING AS NYMBOIDA NATIVE TIMBERS and ROBERT JOHN BORCHERDT v COMMISSIONER OF TAXATION

File number: QUD 90 of 2012

Judge: COLLIER J

Date of judgment: 11 February 2014

Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – respondents purchased fuel for use in sawmilling and farming businesses – respondents claimed diesel fuel credits and diesel tax credits under Energy Grants (Credits) Scheme 2003 (Cth) and Fuel Tax Act 2006 (Cth) – question as to whether fuel supplier existed – no reliable record kept by respondents of fuel use – Commissioner of Taxation disallowed claims for diesel fuel credits and diesel tax credits – s 14ZZK(b) Taxation Administration Act 1953 (Cth) – Tribunal affirmed decision of Commissioner of Taxation – whether Tribunal bound to take into account conduct of Commissioner of Taxation in regard to obligation to act as a model litigant – whether Tribunal failed to take into account relevant considerations – whether Tribunal took into account considerations it was bound not to take into account – whether Tribunal improperly adopted approach and standard of proof applicable to civil litigation – whether Tribunal required to accept evidence in absence of evidence to the contrary – whether Tribunal erred in application of an administrative penalty – distinction between error of law and error of fact – absence of specific reference to material by Tribunal not conclusive of a failure to take material into account or inadequacy of reasons – reasons of Tribunal to be considered as a whole to ascertain whether relevant issues addressed – Tribunal not required to accept evidence in absence of evidence to contrary – Tribunal not required to consider evidence on standard other than balance of probabilities – Tribunal did not err in respect of administrative penalties