Chhua v Commissioner of Taxation [2017] FCA 1127

FEDERAL COURT OF AUSTRALIA

Chhua v Commissioner of Taxation [2017] FCA 1127 File number(s): VID 172 of 2017

Judge(s): DAVIES J

Date of judgment: 22 September 2017

Catchwords: TAXATION – Judicial review sought under s 39B of the Judiciary Act 1903 (Cth) in relation to the formation of the Commissioner's fraud or evasion opinion; not alleged that the assessments were tentative or provisional or the product of conscious maladministration; circumstances in which the formation of a fraud or evasion opinion can be subject to judicial review; challenges to the formation of a fraud or evasion opinion outside Part IVC proceedings. PRACTICE AND PROCEDURE – First Respondent demurred to the entirety of Applicant's statement of claim; whether demurrer provides a complete answer to the Applicant's statement of claim.

Legislation: Constitution Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) Judiciary Act 1903 (Cth) Taxation Administration Act 1953 (Cth)

Cases cited: Binetter v Commissioner of Taxation [2016] FCAFC 163 Commissioner of State Revenue v ACN 005 057 349 Pty Ltd [2017] HCA 6 Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 McAndrew v Federal Commissioner of Taxation [1956] HCA 62 McEvoy v Federal Commissioner of Taxation (1950) 5 AITR 1 WR Carpenter Holdings Pty Ltd v Federal Commissioner of Taxation (2008) 237 CLR 198 Wurridjal v The Commonwealth (2009) 237 CLR 309