Dalton v Deputy Commissioner of Taxation [1986] HCA 15

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Dawson JJ. Dalton v Deputy Commissioner of Taxation [1986] HCA 15

ORDER Appeal dismissed with costs.

The Court delivered the following judgment:—

April 11 Gibbs C.J.,Mason, Wilson, Brennan and Dawson JJ.

This appeal raises for decision the short but important question whether the Commissioner of Taxation, in referring a decision to a Board of Review in accordance with s. 188(1) of the Income Tax Assessment Act 1936 Cth, as amended, is required to include in the statement which he furnishes to the Board, and a copy of which he furnishes to the taxpayer, a statement of his findings on material questions of fact and a reference to the evidence or other material on which those findings are based. The Full Court of the Federal Court by a majority (Lockhart and Wilcox JJ., Smithers J. dissenting) [1] affirmed the decision of Franki J. [2] who answered this question in the negative.

1. (1985) 60 A.L.R. 783; 16 A.T.R. 736; 85 A.T.C. 4476. 2. (1985) 16 A.T.R. 292; 85 A.T.C. 4144.

By s. 185 of the Income Tax Assessment Act a taxpayer dissatisfied with any assessment under that Act may, within the time mentioned in the section, post to or lodge with the Commissioner an objection in writing against the assessment. Section 186 requires the Commissioner to consider the objection and provides that he may disallow it or allow it either wholly or in part and requires the Commissioner to serve the taxpayer with written notice of the decision. Clearly, the Commissioner is not obliged to give reasons for that decision either at the time when he makes it or at the time when he serves the taxpayer with written notice of it. The contrary was not suggested.

Under s. 187 of the Income Tax Assessment Act a taxpayer dissatisfied with the decision on the objection may request the Commissioner either to refer the decision to a Board of Review for review or to treat his objection as an appeal and forward it to a Supreme Court. Section 188(1) provides that if the request is accompanied by the requisite fee the Commissioner shall refer the decision or forward the objection to a Board or court in accordance with the request. Upon the reference to the Board, the taxpayer is limited to the grounds taken in the objection and has the onus of proving the assessment to be excessive: s. 190. The Board has power to review the decision of the Commissioner referred to it and for that purpose has, subject to s. 193, all the powers and functions of the Commissioner: ss. 192, 193. On the reference, the Board gives a decision in writing (s. 195(1)) and, on the request of the Commissioner or the taxpayer, when giving its decision shall state in writing its findings of fact and its reasons in law for the decision: s. 195(2).