Federal Court of Australia
Federal Court of Australia
ASZ21 v Commissioner of Taxation [2021] FCA 1304 File number: VID 819 of 2020
Judgment of: MOSHINSKY J
Date of judgment: 26 October 2021
Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal of proceeding – where applicant commenced proceeding by originating application seeking declaratory relief in relation to capital gains tax issues – where the Commissioner sought summary dismissal on basis that the applicant had no reasonable prospect of successfully obtaining the declaratory relief sought and/or the proceeding was an abuse of process – where the Commissioner contended that a proceeding under Pt IVC of the Taxation Administration Act 1953 (Cth) was a more appropriate vehicle to determine the issues – whether the proceeding should be summarily dismissed – whether, as a matter of case management, the Commissioner should be allowed time to investigate potentially relevant tax issues
Legislation: Federal Court of Australia Act 1976 (Cth), ss 21, 31A Income Tax Assessment Act 1997 (Cth), ss 108-20, 118-10 Judiciary Act 1903 (Cth), s 39B Taxation Administration Act 1953 (Cth), Sch 1, s 350-10 Federal Court Rules 2011, r 26.01
Cases cited: Spencer v Commonwealth (2010) 241 CLR 118 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 Tresize v National Australia Bank Limited [2020] FCA 902 Trkulja v Google LLC (2018) 263 CLR 149 Victoria International Container Terminal Ltd v Lunt (2021) 388 ALR 376
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