Sutton v Commissioner of Taxation (Cth) [1959] HCA 3

High Court of Australia Dixon C.J. Fullagar, Kitto, Taylor and Windeyer JJ. Sutton v Commissioner of Taxation (Cth) [1959] HCA 3

ORDER Questions referred to the High Court by the case stated by the Board of Review answered as follows: Question (1) The board has no power to make such an order imposing a legal obligation. Question (2) Yes. Question (3) Does not arise but otherwise the answer would be covered by the answer to Question (1). Order that the taxpayer pay the costs of the reference to the High Court.

Cur. adv. vult.

The Court delivered the following written judgment:—

Feb. 26, 1959 Dixon C.J., Fullagar, Kitto, Taylor and Windeyer JJ.

Section 196 (2) of the Income Tax and Social Services Contribution Assessment Act 1936-1958 provides that a board of review shall, upon the request of the commissioner or taxpayer, refer to the High Court any question of law arising before the board.

At the request of the taxpayer the board of review by which this case was dealt with acted under this provision and referred three questions to the Court.

The effect of the first question was to inquire whether the commissioner might be ordered to supply the taxpayer with particulars as to any of a number of matters set out. The second referred to the statement furnished by the commissioner to the board in pursuance of reg. 35 (1) of the Income Tax and Social Services Contribution Regulations and asked in substance whether so much of the statement as purported to give his reasons for disallowing the objection amounted to a compliance with the requirement of the regulation. The third question asked, if not, whether the board had power to order the commissioner to comply.

It appears from the stated case that after an investigation of her financial affairs by an officer of the commissioner the taxpayer received amended assessments greatly increasing her taxable income for the years between 1st July 1939 and 30th June 1949, and that after a further investigation she received amended assessments affecting some of the years mentioned and increasing her taxable income of the ensuing years up to 30th June 1953. In respect of the first of the above series of amended assessments the commissioner fixed fifty per cent of the tax which according to the assessments had been avoided as the additional tax payable under s. 226.