Millar v Commissioner of Taxation [2015] FCA 1104

FEDERAL COURT OF AUSTRALIA

Millar v Commissioner of Taxation [2015] FCA 1104 Citation: Millar v Commissioner of Taxation [2015] FCA 1104

Appeal from: Morrison and Commissioner of Taxation [2015] AATA 114

Parties: GAYE MILLAR and GRAHAM MILLAR v COMMISSIONER OF TAXATION

File numbers: NSD 276 of 2015

Judge: GRIFFITHS J

Date of judgment: 19 October 2015

Catchwords: TAXATION – appeal from a decision of the Administrative Appeals Tribunal ('AAT') affirming the respondent's decision to disallow the applicants' objections against amended assessments and notices of assessment of shortfall penalty – where the AAT found the existence of sham – whether the AAT erred in not confining its assessment of whether sham existed to an inquiry into the applicants' subjective intentions – whether the AAT erred in determining, under s 170 of the Income Tax Assessment Act 1936 (Cth), whether there had been 'fraud or evasion' instead of whether it was of the opinion there had been 'fraud or evasion' – whether the AAT failed to provide adequate reasons pursuant to s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the AAT denied the applicants procedural fairness

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44 Income Tax Assessment Act 1936 (Cth) ss 26AFB, 26AFB(3), 26AFB(4), 170, 221YK(3) Income Tax Assessment Act 1997 (Cth) s 26-25 Superannuation Industry (Supervision)Regulations 1994 (Cth) Pt 6 Supervision Industry (Supervision) Act 1993 (Cth) ss 19, 62 Tax Administration Act 1953 (Cth) ss 14ZZK, 14ZZK(b)(iii), Sch 1, 11-5, 2-254, 12-245, 12-250, 12-255, 26-25, 298-20, Div 12