Henderson v Commissioner of Taxation (Cth) [1970] HCA 62

High Court of Australia Windeyer J. Barwick C.J. McTiernan and Menzies JJ. Henderson v Commissioner of Taxation (Cth) [1970] HCA 62

ORDER Appeals against the assessments allowed with costs. Matters remitted to the Commissioner. Time within which a notice of appeal against this order may be given by either party to be twenty-one days from 2nd May, 1969. Usual order as to exhibits. In each case appeal allowed with costs. Cross appeal dismissed with costs. Order that, in reassessing the appellant pursuant to the order of Windeyer J., the Commissioner shall reassess in conformity with the Court's reasons for judgment given this day.

Cur. adv. vult.

1969, April 18 Windeyer J . delivered the following written judgment:—

These are two appeals, heard together, brought pursuant to ss. 187 and 197 of the Income Tax Assessment Act 1936-1966 Cth, against assessments of income tax in respect of the years ended 30th June 1965 and 30th June 1966. The taxpayer, Roy Halliday Henderson, objected to the Commissioner's assessments on the unusual and surprising ground that they were too low. At the outset of the hearing the question was raised of where the onus lay. Was it for the taxpayer to show that the assessment was mistaken or for the Commissioner to show that it was correct? Counsel referred me to ss. 167, 177 and 185-190 of the Act. The last-mentioned section provides that "the burden of proving that the assessment is excessive shall lie upon the taxpayer". There is no express provision for the case of a taxpayer who appeals against an assessment as being too low. Although the proceedings in this Court are called an appeal, the Court is really called upon, in the exercise of its original jurisdiction, to determine the matter on the evidence before it. It has not to determine the correctness of the Commissioner's decision on the evidence before him. The Act does not in the present situation expressly state where the burden of the case lies. However, as the proceedings arise from the disallowance of the taxpayer's objection, I thought it proper to direct that the taxpayer's case should be presented first—a course to which the parties were agreeable. I did so without prejudice to the question, if it should ultimately arise, of whether the Commissioner must establish that the method of computation he had adopted was correct. However, it seems to me after hearing the evidence that the essential facts are not in dispute. The question is, what in law are their consequences?