Federal Commissioner of Taxation v Travelex Limited [2021] HCA 8

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON AND EDELMAN JJ

THE COMMISSIONER OF TAXATION OF THE

COMMONWEALTH OF AUSTRALIA APPELLANT

AND

TRAVELEX LIMITED RESPONDENT

Federal Commissioner of Taxation v Travelex Limited

[2021] HCA 8

Date of Hearing: 2 December 2020

Date of Judgment: 10 March 2021

S116/2020

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 14 February 2020 and, in their place, order that:

(a) the appeal be allowed;

(b) orders 1 and 2 of the orders made by Wigney J on 12 July 2018 be set aside and, in their place, a declaration be made in the following terms:

It is declared that in the circumstances no RBA surplus has arisen in relation to the tax period (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth)) of Travelex Limited for the month of November 2009 and no interest is presently payable by the Commissioner of Taxation of the Commonwealth of Australia to Travelex Limited under the provisions of the Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth) in respect of that tax period; and

(c) Travelex Limited pay the Commissioner of Taxation of the Commonwealth of Australia's costs of the appeal.

3. The appellant pay the respondent's costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

N J Williams SC and M J O'Meara SC with C M Sievers for the appellant (instructed by Balazs Lazanas & Welch LLP)

J O Hmelnitsky SC with L McBride and D P Hume for the respondent (instructed by MinterEllison)

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

CATCHWORDS

Federal Commissioner of Taxation v Travelex Limited

Taxation – Administration – Goods and services tax – Taxable supply – Running Balance Accounts ("RBA") – Commissioner's obligation to pay interest – Where Commissioner lacked statutory authority to amend taxpayer's GST return – Where net amount in GST return calculated in error – Where Commissioner purported to amend taxpayer's GST return and credited taxpayer's RBA – Whether mistaken balance in an RBA is efficacious in law to constitute an RBA surplus within meaning of Pt IIB of Taxation Administration Act 1953 (Cth) – Whether Commissioner obliged to pay interest under Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth).