Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

COMMISSIONER OF TAXATION APPELLANT

AND

FUTURIS CORPORATION LIMITED RESPONDENT

Commissioner of Taxation v Futuris Corporation Limited

[2008] HCA 32

31 July 2008

A47/2007

ORDER

1. Appeal allowed with costs.

2. Set aside the orders and declaration of the Full Court of the Federal Court of Australia entered on 26 June 2007 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

N J Williams SC with A J Payne and L B Price for the appellant (instructed by Australian Government Solicitor)

D F Jackson QC with B J Sullivan SC and T M Thawley for the respondent (instructed by Cosoff Cudmore Knox)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commissioner of Taxation v Futuris Corporation Limited

Income Tax – Review and appeals – Judicial review – Judiciary Act 1903 (Cth) ("the Judiciary Act"), s 39B – Appellant Commissioner issued amended assessments of income tax to respondent taxpayer – Taxpayer alleged Commissioner deliberately "double counted" amounts of assessable income –Taxpayer sought judicial review in Federal Court under s 39B of the Judiciary Act while "appeal" pending under Pt IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act") – Relationship between Constitution and proceedings under Pt IVC of the Administration Act and s 39B of the Judiciary Act – Scope of issues for determination in s 39B proceeding – Relevance of availability of remedy in Pt IVC proceeding to discretion to grant relief in s 39B proceeding.

Income Tax – Validity of assessment – Judicial review – Finding of Full Court that Commissioner failed to exercise bona fide the power of assessment –Income Tax Assessment Act 1936 (Cth) ("the Act"), s 175 provided that failure to comply with provisions of the Act did not affect validity of assessment – Whether deliberate maladministration manifests jurisdictional error – Whether "double counting" manifested jurisdictional error where amended assessment issued on footing that compensatory adjustment could be made under s 177F(3) – Whether amended assessment "tentative" or "provisional" – Meaning of "bona fide" – Whether other grounds for judicial review of amended assessment relied on by the taxpayer and available in the proceedings.