R v Cain; Ex parte Evatt [1975] HCA 57

High Court of Australia Barwick C.J. McTiernan, Gibbs, Stephen and Mason JJ. R v Cain; Ex parte Evatt [1975] HCA 57

ORDER Order nisi discharged. Prosecutor to pay respondent's costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 10 Barwick C.J.

I have the advantage in this application of reading the reasons for judgment prepared by my brother Gibbs. I agree that the order nisi should be discharged for the reason that the respondent Commissioner had not failed to comply with the provisions of reg. 35 of the Income Tax Regulations. I also agree that in principle the application cannot be distinguished from the case of Sutton v. Federal Commissioner of Taxation [8] . In my opinion, that case was correctly decided and governs the present application. I think that it is rightly said in the reasons for judgment in that case that the provisions of reg. 35 are included for the benefit of the Board of Review. In my opinion, the requirement of reg. 35(2) is merely to inform the objecting taxpayer of the material which has been sent to the Board. I do not think that the presence of that sub-regulation alters the intention of the provisions of the regulation as a whole.

1. (1959) 100 C.L.R. 518.

As I have indicated elsewhere, the duty of the Commissioner is fully to inform the taxpayer of the basis upon which the assessment is raised. In this case, in my opinion, he did so. It is my opinion that it would be preferable if, having from the taxpayer material in amplification of the formal grounds of objection, the Commissioner presented that material or an accurate abstract or summary of it to the Board to facilitate the work of the Board. But the Commissioner is not required by the regulations to inform the Board of his views as to that material.