YOUNAN, Adison v R [2010] NSWDC 168

New South Wales District Court

CITATION: YOUNAN, Adison v R [2010] NSWDC 168

JUDGMENT DATE: 13 April 2010

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The conviction is set aside

CATCHWORDS: CRIMINAL LAW - conviction appeal - failure to file personal tax return - appellant a tax consultant - submission that ATO cannot prove beyond reasonable doubt that a tax notice pursuant to s 162 Income Tax Assessment Act 1936 was posted and served - circumstantial evidence only showing notice sent - ATO's computer system

Taxation Administration Act 1953 s 8C(1)(a) LEGISLATION CITED: Income Tax Assessment Act 1936 s 162 Crimes (Appeal and Review) Act 2001

CASES CITED: Mahmood v Western Australia (2008) 232 CLR 397 R v Louizos [2009] NSWCCA 71

PARTIES: Regina Adison Younan

FILE NUMBER(S): 2009/117172

COUNSEL: Mr Young for the appellant Ms Beckett for the respondent

JUDGMENT

1. Adison Younan is a tax consultant. He is a qualified chartered accountant and solicitor. He presently works for the National Australia Bank, placed in its subsidiary the MLC Limited. In the recent past he was employed by Greenwoods & Freehills, a specialised tax advisory firm, connected with the law firm Freehills.

2. Despite these qualifications, professional employment and responsibilities, he is being prosecuted by the Australian Tax Office for failing to file one of his personal tax returns. When it was eventually filed, it resulted in a refund to Mr Younan.

3. The ATO's case depends on proving that it posted and served a final notice on Mr Younan, requiring him to file his tax return. Mr Younan not only says he never received the tax notice, he also says that when the ATO's case is examined closely it cannot satisfy me beyond reasonable doubt that the notice was actually posted and served.