Commissioner of Taxation v Clyne [1958] HCA 10

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Kitto and Taylor JJ. Commissioner of Taxation v Clyne [1958] HCA 10

ORDER Demurrer overruled. Judgment for the plaintiff for £752 with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 2, 1958 Dixon C.J.

This suit is brought by the Commissioner of Taxation against a taxpayer to recover a sum of £752 as provisional tax and contribution due under the provisions of the Income Tax and Social Services Contribution (Individuals) Act 1956 (No. 102 of 1956) as that Act operates upon the Income Tax and Social Services Contribution Assessment Act 1936-1956.

The suit is brought under the authority of ss. 208 and 209 of the latter Act as applied to provisional tax and contribution by sub-s. (2) of s. 221YA. Sub-section (3) of that section provides that the ascertainment of the amount of any provisional tax (an expression including contribution) shall not be deemed to be an assessment within the meaning of any of the provisions of the Assessment Act, but s. 221YD provides in effect that the amount may be notified on the notice of assessment of the income of the year next preceding the year of income and shall become due and payable on the date specified in the notice or on 31st March next if that be the later date. Section 221YH makes the notice of assessment prima facie evidence that the amount of provisional tax and all particulars relating thereto are correct.

The commissioner's statement of claim alleges that the amount claimed is for provisional tax and contribution, within the meaning of the Acts mentioned, lawfully ascertained in respect of the income of the defendant for the year of income ending 30th June 1957. By particulars treated by agreement as part of the pleading it is stated that the amount of £752 was ascertained on 9th April 1957 and notified on a notice of assessment of the income tax payable by the defendant in respect of the income of the year ended 30th June 1956. It is also stated that the amount was ascertained under Div. 3 of Pt. VI of the Assessment Act and that the tax claimed is provisional tax within the meaning of the Act and as defined by s. 221YA.