Bakri v Deputy Commissioner of Taxation [2017] FCA 20

FEDERAL COURT OF AUSTRALIA

Bakri v Deputy Commissioner of Taxation [2017] FCA 20 File number: NSD 32 of 2017

Judge: BURLEY J

Date of judgment: 23 January 2017

Catchwords: TAXATION – application to set aside departure prohibition order – whether order was granted for improper purpose – whether reasonable grounds existed for Commissioner's belief under s 14S of the Taxation Administration Act 1953 (Cth) – application dismissed

Legislation: Taxation Administration Act 1953 (Cth) ss 14S, 14T, 14U, 14V, 14X, Schedule 1

Cases cited: Pattenden v Commissioner of Taxation (2008) FCA 1590 Poletti v Commissioner of Taxation [1994] FCA 623; (1994) 52 FCR 154 Troughton v Deputy Commissioner of Taxation [2008] FCA 18; (2008) 166 FCR 9

Date of hearing: 20 January 2017

Registry: New South Wales

Division: General Division

National Practice Area: Taxation

Category: Catchwords

Number of paragraphs: 53

Counsel for the Applicant: Mr A Duc

Solicitor for the Applicant: Edgeworth Legal Pty Ltd

Counsel for the Respondent: Mr M O'Meara

Solicitor for the Respondent: Australian Government Solicitor

ORDERS NSD 32 of 2017

BETWEEN: MHAMED BAKRI Applicant

AND: DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE: BURLEY J DATE OF ORDER: 20 JANUARY 2017

THE COURT ORDERS THAT:

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

BURLEY J: 1 In this proceeding the applicant seeks an order pursuant to s 14X, Taxation Administration Act 1953 (Cth) (TA Act), setting aside a departure prohibition order issued by the Deputy Commission of Taxation dated 6 January 2017 (DPO). The respondent opposes the application. The proceedings have come before the court quickly. The application was filed on 13 January 2017. It was returned for directions on 18 January 2017 and heard on 20 January 2017. The application was said to be urgent because the applicant wishes to depart Australia for Dubai in the United Arab Emirates on Sunday, 22 January 2017. 2 On 20 January 2017, I gave my decision dismissing the application with costs. Set out below are my reasons for that decision. 3 The evidence relied upon in the application was two affidavits affirmed by the applicant Mhamed Bakri, affirmed on 11 January 2017 and 18 January 2017. The respondent relied upon the affidavit of Aris Zafiriou, affirmed on 18 January 2017. Mr Zafiriou is the acting Assistant Commissioner of the Significant Debt Management Team of the Australian Taxation Office. His affidavit annexed the decision to issue the DPO made by Mr Steve Atkins, the Assistant Commissioner, Significant Debt Management, which was set out in an email dated 22 December 2016 (Decision). Mr Zafiriou's affidavit also annexed Notices of Amended Assessment for the applicant from 2011 to 2015, the reasons for decision in relation to those amended assessments and other supporting documents. 4 The Decision referred to a departmental brief provided to Mr Atkins dated 21 December 2016 and which was also annexed to Mr Zafiriou's affidavit (minute). The parties accepted that the Decision was to be understood as incorporating the minute by reference. 5 Each party provided written submissions on the morning of the hearing and addressed those submissions in oral argument. In summary, the applicant contends that the DPO should be set aside because the Decision was made for an improper purpose and because the Decision was not based on reasonable grounds.