Federal Commissioner of Taxation v Australian Tesselated Tile Company Pty Ltd [1925] HCA 22

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36 CLR.) OF AUSTRALIA. 119

(HIGH COURT OF AUSTRALIA]

THE FEDERAL COMMISSIONER OF | TAXATION, FOR AND ON BEHALF PLaIntiFF ; OF THE COMMONWEALTH . f |

AGAINST

THE AUSTRALIAN TESSELATED TILE ) COMPANY PROPRIETARY LIMITED . ) DEFENDANT.

Income Tax—Company—Profits which might reasonably have been distributed— yy ©, oF A. Determination of Commissioner of Taxation—Communication to taxpayer— 1995, Right of taxpayer to be heard—Board of Appeal—Validity of legislation—Income Tax Assessment Act 1922 (No. 37 of 1922), sec. 21. Metnouryr,

Held, by Knox C.J., Higgins and Starke JJ., that the word " determination" June 2, 16. in see, 21 (1) of the Income Tax Assessment Act 1922 implies a communication

i eee is knox CF of 1 jsaacs, Higgins, of the determination to the taxpayer. ace, Hig Starke JJ.

Per Isaacs and Rich JJ.:—(1) Sub-sec. 5 of sec, 21 of that Act is invalid for the reasons stated in British Imperial Oil Co. v. Federal Commissioner of Taxation, (1925) 35 C.L.R. 422, and, therefore, where a taxpayer is dissatisfied with the Commissioner's decision there is no additional tax; but that sub- section is severable, and where a taxpayer is not so dissatisfied the rest of the section operates. (2) In order to constitute a valid determination of the Commissioner under sec, 21 (1) it is not necessary that the taxpayer shall have been heard.

Specran Case.

Tn an action brought in the High Court by the Federal Commis- sioner of Taxation, for and on behalf of the Commonwealth, against the Australian Tesselated Tile Co. Pty. Ltd., the parties concurred in stating, for the opinion of the Court, a special case which (so far as is material) set out the following facts :—

The plaintiff's claim endorsed on the writ was for a sum of £342 1s. 3d., being the amount of income tax due and payable by

120 HIGH COURT (1925.