R v Federal Commissioner of Taxation; Ex Parte Sir Kelso King [1930] HCA 17

OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.]

THE KING

AGAINST

THE FEDERAL COMMISSIONER OF TAXATION;

Ex Parte SIR KELSO KING.

Tax (Cth.)\—Rebate—Tax payable more than three years prior to claim for rebate—Time for claiming rebate—No time limited—No alteration of assessment involved—Income Tax Assessment Act 1922-1928 (No. 37 of 1922—No. 46 of 1928), secs. 18%, 37 (2)*.

The allowance of a rebate of income tax under sec. 18 of the Income Tax Assessment Act 1922-1928 does not involve an "alteration in an assessment " _ under see. 37 (2) of that Act, and consequently the proviso to sec. 37 (2) does not impose a time bar to the taxpayer's application for relief under sec. 18 ; therefore an application for a rebate under sec. 18 need not be made within three years from the date when the tax payable on the assessment was originally

_ due and payable.

Rute Nist for mandamus.

This was a rule ni:

See. 18 of the Income Tax Assess- 'Act 1922-1928 provid

8 (1) Any person who has an t of income which is liable to income tax for any year of assessment— under this Act and in the United dom, or (6) under this Act and in

e United Kingdom and in a State of

e Commonwealth of Australia, and satisfies the Commissioner as to amount of the income which is liable; and (d) the amounts of taxes which the income is so liable, to-

xes, shall be entitled to a rebate of X upon that amount of income at a

for a mandamus to the Commissioner of tion obtained by the prosecutor, Sir Kelso King, as attorney

rate which shall be ascertained as follows :—" [Then follow the method of computing the rate, a definition clause, and an evidentiary provision]. Sec. 37 (2) provides:—* When any alteration in an assessment has the effect of reducing the taxpayer's lia- bility the Commissioner may refund the taxpayer any tax overpaid: Pro- vided that where the alteration in the assessment is due to an application by the taxpayer no refund shall be given if the application has not been made within three years after the tax was originally due and payable."