Kedwell v Deputy Commissioner of Taxation [2020] NSWCA 238

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kedwell v Deputy Commissioner of Taxation [2020] NSWCA 238 Hearing dates: 20 August 2020 Date of orders: 1 October 2020 Decision date: 01 October 2020 Before: Bell P at [1]; Basten JA at [2]; Payne JA at [3]. Decision: (1) Appeal dismissed; (2) Appellant to pay the costs of the respondent. Catchwords: TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – where company failed to remit PAYG withholdings to the Commissioner – where Director Penalty Notice issued – where appellant made payments to the Commissioner but failed to advise they were to be applied to the Director Penalty Notice liability – whether primary judge erred in finding that amounts paid did not extinguish Director Penalty Notice liability ESTOPPEL – estoppel by representation – detrimental reliance – whether ATO officer made representations that the PAYG withholding liabilities had been satisfied – whether Commissioner estopped from asserting that the amount was received and allocated other than in satisfaction of Director Penalty Notice liability Legislation Cited: Corporations Act 2001 (Cth), ss 286, 1305(1) Taxation Administration Act 1953 (Cth) Pt IIB, ss 8AAZA, 8AAZL, 8AAZLA, 8AAZLB, 8AAZLE, Schedule 1 ss 16-70, 16-75, 250-10(2), 255-5, 269-10(1), 269-15, 269-20, 269-25, 269-30, 269-40, 269-50 Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Commissioner of Taxation v Firth (2002) 120 FCR 450; [2002] FCA 413 Commissioner of Taxation v Radilo Enterprises Pty Ltd (1997) 72 FCR 300; [1997] FCA 22 Deputy Commissioner of Taxation v Kedwell [2019] NSWDC 610 Fitzgerald v Deputy Commissioner of Taxation [2017] NSWCA 158 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Lee v Deputy Commissioner of Taxation; Silverbrook v Deputy Commissioner of Taxation [2020] NSWCA 95 Robertson v Deputy Commissioner of Taxation [2010] NSWCA 58 VL Finance Pty Ltd v Legudi [2003] VSC 57; (2003) 54 ATR 221 Walton Stores (Interstate Ltd) v Maher (1988) 164 CLR 387; [1988] HCA 7 Texts Cited: Practice Statement Law Administration 2011/20 Category: Principal judgment Parties: Nathan Joel Kedwell (Appellant) Deputy Commissioner of Taxation (Respondent) Representation: Counsel: A Gerard (Appellant) L Livingston (Respondent)