MCGOVERN V. SHEARER

0.13880 /45

1 E Day, Gor. Print, Melb.

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

"SHEARER.

JUDGMENT. RICH Je

This is a taxation prosecution by action pursuant to sec. 233(1) of the Income Tax Assessment Act 1936-1947. The allegations in the statement of claim made by the plaintiff Commissioner of Taxation relate to offences against certain sections of the Act as applied to the Social ServicesContribution Assessment Act 1945-1947. The sections concerned are sec. 227(1), sec. 230(1) and sec. 231(1) + All the allegations in the statement of claim were admitted. Paragraph 2 of the statement of defence was with- drawn at the hearing. On these admissions Mr. Brown, counsel for the plaintiff Commissioner,moved for judgment in respect only of the offence against sec. 231(1) » I directed counsel to produce the returns made by the defendant and the assessment to tax by the Commissioner. It was then stated that the assessment had not yet been made butthe returns were produced and made an exhibit. The first return dated 31st August 1947 which pursuant to sec. 161 the defendant furnished to the plaintiff Commissioner contained the declaration that his total income from personal exertion for the year of tax wasé516. This was admittedly an understatement as his income amounted to not less tnan £7,068. The plaintiff refused to accept this return and on 18th May 1948 the defendant made an amended return. This was the result of enquiries and investigations by the Commissioner's officers and the return dec- lared his total net income from personalexertion to be Loss. This compares well with the Commissioner's estimate ond 1068. As this was done only after an investigation of the defendant's true income had been made by the officers of the Commissioner it might be rash to treat it as necessarily indicative of a repentant spirit on the part of the defendant. I must, however, consider the shortcomings of the first return and the admissions in the pleadings which evidence the offence against the relevant section - sec.231(1).