Deputy Commissioner of Taxation v McMahon [2010] NSWDC 257

New South Wales District Court

CITATION: Deputy Commissioner of Taxation v McMahon [2010] NSWDC 257

HEARING DATE(S): 27 September 2010 EX TEMPORE JUDGMENT DATE : 27 September 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Judgment for the plaintiff for the sum of $164,926.37. (2) Defendant pay the plaintiff's costs.

CATCHWORDS: TAXES AND DUTIES - Income tax and related legislation - collection and recovery of tax - proceedings for recovery - defence pleads an appeal is pending from the assessment of tax - "pay now and argue later" nature of tax legislation

Income Tax Assessment Act 1936 (Cth) LEGISLATION CITED: Income Tax Regulations 1936 (Cth) Taxation Administration Act 1953 (Cth), Part IIA and s 14ZZM

Cywinski v Deputy Commissioner of Taxation [1990] VR 193 CASES CITED: Deputy Commissioner of Taxation v Denlay [2010] QCA 217 Deputy Federal Commissioner of Taxation v Akers (1989) 89 ATC 4725

PARTIES: Plaintiff: Deputy Commissioner of Taxation Defendant: Paul McMahon

FILE NUMBER(S): 2009/00333497

COUNSEL: Plaintiff: Mr J S Walsh Defendant: Ms R Graycar

SOLICITORS: Plaintiff: ATO Legal Services Branch Defendant: Bryan Gorman & Co

JUDGMENT

[1] HER HONOUR: The plaintiff, by statement of claim filed on 9 February 2009, claims a liquidated sum, at the time $138,805.53, but now $164,926.37, inclusive of interest to today's date. The plaintiff brings these proceedings in her capacity as Deputy Commissioner of Taxation, for which she is entitled to sue to recover debts due to the Commonwealth of Australia which are payable to the Commissioner of Taxation.