Jolly v Federal Commissioner of Taxation [1935] HCA 21

H.C. or A. Income Pax (Cth.)—Taxpayer's return—Omission of assessable income—Penal Additional tax—Remission of additional tax—Power of Board of R remit—The Constitution (63 & 64 Vict. c. 12), sec. 55—Income Tax As Act 1922-1934 (No. 37 of 1922—No. 51 of 1934), secs. 44, 67.*

1935. ad

MELBOURNE,

March 12; April 30. Rich, Starke, Dixon, Evatt and MeTiernan JJ.

HIGH COURT

[HIGH COURT OF AUSTRALIA.)

JOLLY . i 3 - ;

THE FEDERAL COMMISSIONER OF TAXATION Responp

Under sec. 44 of the Income Tax Assessment Act 1922-1934 the Review has power to review the entire process of assessing additional

*The Income Tax Assessment Act 1922- 1934, sec. 67, provides :—" (1) Notwith- standing anything contained in the last preceding section, any person who— (a) fails or neglects to duly furnish any return or information as and when re- quired by this Act or the regulations or by the Commissioner; or (b) fails to include any assessable income in any return ; or (¢) includes in any return as a deduction an amount which is in excess of that actually expended or incurred by him, shall . . . be liable to pay additional tax at the rate of ten per centum per annum upon the amount:

AND

not contravene sec. 55 of the Constitution as not imposing a tax upon in which is the subject matter of the Act, or as not dealing with taxation

of tax assessable to him . . « | sum of one pound, whichever greater, or" (in another "shall be liable to pay by additional tax the amount of one or double the amount of the between the tax properly pay the tax assessed upon the b return lodged, whichever is the in addition to any additional ta may become payable by him. Provided that the Commi

in any particular case, for which he thinks sufficient, additional tax or any part tl

OLR.) OF AUSTRALIA.

On an appeal by John Jolly to the Board.of Review from a decision »f the Commissioner refusing to remit additional tax in respect of income of the taxpayer assessed for the financial year 1925-1926, e majority of the Board held that it had no power to remit wholly 'partly the additional tax imposed by sec. 67 (1) of the Act. From decision the taxpayer appealed to the High Court, and Starke J. a special case, which was substantially as follows, for the ypinion of the Full Court :—