Fletcher v Commissioner of Taxation (Cth) [1991] HCA 42

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Fletcher v Commissioner of Taxation (Cth) [1991] HCA 42

ORDER Appeal allowed. Set aside the orders of the Full Court of the Federal Court made on 28 June 1990 and in lieu thereof order that the matter be remitted to the Administrative Appeals Tribunal for further hearing. Liberty reserved to the parties to apply within fourteen days of this order with respect to the costs of these proceedings before the Federal Court and before this Court, otherwise each party will bear his or her own costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 14 Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

These proceedings involve a challenge to the correctness of fourteen income tax assessments issued by the respondent Commissioner of Taxation ("the Commissioner") to one or other of the four appellants ("the taxpayers") in respect of tax years within the period 1982-1985 ("the tax years"). In each of the returns giving rise to the assessments, the particular taxpayer claimed a deduction for his or her share of the net loss allegedly sustained in the relevant tax year by a partnership called "Annuity Investments Partnership No. 18" ("the partnership"). In each assessment, the Commissioner disallowed the claimed deduction. Objections by the taxpayers against the assessments were all disallowed by the Commissioner. The taxpayers appealed to the Administrative Appeals Tribunal. The Tribunal ("the First Tribunal") affirmed the Commissioner's decision in relation to each objection on the ground that the claim to the deduction should be disallowed pursuant to the general anti-avoidance provisions of Pt IVA of the Income Tax Assessment Act 1936 Cth ("the Act"). An appeal by the taxpayers to the Full Court of the Federal Court (Lockhart, Wilcox and Burchett JJ.) was upheld on the ground that Pt IVA had been neither relied upon by the Commissioner in making the assessments or disallowing the objections nor raised in the course of the hearing before the First Tribunal [1] . The consequence was that the decision of the First Tribunal was vitiated by a denial of procedural fairness. The Full Court ("the First Full Court") ordered that the matter be remitted to the Tribunal for further hearing. An application to this Court for special leave to appeal from the decision of the First Full Court was refused.