Taxation, Commissioner of v Dalco [1990] HCA 3

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Taxation, Commissioner of v Dalco [1990] HCA 3

ORDER Appeals allowed. Set aside the orders of the Full Court of the Federal Court and in lieu thereof order that each of the appeals to that Court be dismissed with costs. Order that the appellant pay the respondent's costs of each appeal to this Court.

Cur. adv. vult.

The following written judgments were delivered:—

1990, Feb. 9 Mason C.J.

I agree with the reasons for judgment of Brennan J. and Toohey J.

Brennan J.

The appellant ("the Commissioner") assessed the respondent ("the taxpayer") to income tax by amended assessments in respect of the years ended 30 June 1976, 1977, 1978 and 1980. Written notices of the amended assessments were served upon the taxpayer. The assessments were made under par. (b) of s. 167 of the Income Tax Assessment Act 1936 Cth ("the Act"). Section 167 must be read in conjunction with s. 166 of the Act for the two sections together prescribe the scope of the duty of the Commissioner to make assessments and confer upon him the power to perform that duty: George v. Federal Commissioner of Taxation [1] . The taxpayer does not impugn the validity of the assessments; he attacks the respective amounts at which his taxable income was assessed.

1. (1952) 86 C.L.R. 183, at p. 204.

The taxpayer's appeals to the Supreme Court of New South Wales consequent on the Commissioner's disallowance of his objections to the assessments were dismissed by Yeldham J. [2] . The taxpayer appealed to the Federal Court. By a majority (Sheppard and Gummow JJ., Wilcox J. dissenting) the Full Court allowed the appeals [3] . The majority did not find any factual error in the findings made by Yeldham J. but they held that the taxpayer had succeeded in showing that each of the assessments was excessive "in that it was not warranted by law" [4] . They remitted each matter to the Commissioner for reassessment. From that order, the Commissioner brings these appeals by special leave.