Taxation, Commissioner of (Cth) v Finn [1960] HCA 69

High Court of Australia Fullagar J. Taxation, Commissioner of (Cth) v Finn [1960] HCA 69

Cur. adv. vult.

Fullagar J delivered the following written judgment:—

Sept. 13 Fullagar J

This is an appeal by the Commissioner of Taxation under s. 196 (1) of the Income Tax and Social Services Contribution Assessment Act 1936-1957 from a decision of a board of review. The taxpayer, Gordon William Finn, in his return of income derived by him in the year ended 30th June 1957, claimed as an allowable deduction under the head of "travelling expenses" a sum of £352. The Commissioner by his assessment disallowed this deduction, and later disallowed an objection by the taxpayer to the assessment. The taxpayer under s. 187 of the Act requested the Commissioner to refer his decision to a board of review for review, and the Commissioner referred his decision accordingly. The Board by a majority, allowed the objection and reduced the assessment by the amount of £352. The Commissioner now appeals to this Court.

When the appeal was called on for hearing before me, Mr. Downing Q.C. and Mr. Gleedman appeared for the Commissioner. There was no appearance for the taxpayer. Mr. Downing then submitted that the Commissioner was entitled, without entering on the merits of the case, to have his appeal allowed. He said that the so-called appeal given by s. 196 (1) was an appeal by way of rehearing—in other words, that the right of appeal was neither more nor less than a right to have a rehearing. The right is given either to the Commissioner or the taxpayer, though it is given only against decisions of the Board which involve a question of law. But, whether the appellant is the Commissioner or the taxpayer, the position, counsel said, is the same. In either case the burden of proving that the assessment is excessive lies upon the taxpayer. In either case it is for the taxpayer to begin, and for the taxpayer to place before the Court the material on which he relies. If he fails to appear and do this, there is no material upon which he can challenge the assessment. There is a presumption that the original assessment is correct, and that presumption must prevail. It follows that, if the taxpayer is the appellant, the taxpayer's appeal fails, and, if the Commissioner is the appellant, the Commissioner's appeal succeeds.