Atkinson v Commissioner of Taxation [2001] NSWCA 297

Reported Decision : (2001) 48 ATR 23

New South Wales Court of Appeal

CITATION : Atkinson v Commissioner of Taxation [2001] NSWCA 297 FILE NUMBER(S) : CA 40082/01 HEARING DATE(S) : 31 August 2001 JUDGMENT DATE : 31 August 2001

PARTIES : George Atkinson v Commissioner of Taxation JUDGMENT OF : Priestley JA at 1; Heydon JA at 1; Hodgson JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8071/99 FILE NUMBER(S) : LOWER COURT His Honour Judge Naughton JUDICIAL OFFICER :

COUNSEL : Appellant - In person Respondent - I. Young SOLICITORS : Appellant - In Person Respondent - Australian Government Solicitor CATCHWORDS : Claim for damages arising out of the issue of garnishment notices to enforce a judgment for unpaid tax - whether notices of assessment had been served LEGISLATION CITED : Income Tax Assessment Act DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40082/012 DC8071/99 PRIESTLEY JA HEYDON JA HODGSON JA

Friday, 31 August 2001 ATKINSON v COMMISSIONER OF TAXATION

Judgment 1 PRIESTLEY JA (For the Court): The Court has before it an appeal by Mr George Atkinson against a judgment of his Honour Judge Naughton in the District Court. In the proceedings before Judge Naughton, Mr Atkinson was claiming in substance the return of a sum of money that had been in his bank account, when on or about 21 May 1998 the bank paid the money over to the Commissioner of Taxation pursuant to notices given by the Commissioner under section 218 of the Income Tax Assessment Act. 2 There is quite a long history behind the fact of the sum of money which was in Mr Atkinson's bank on that day being there, but for the purposes of the proceedings before Judge Naughton and the appeal in this Court it is not necessary to go into the history. 3 The essential facts are very short. The money which was a sum of the order of one hundred and fifty-seven thousand dollars was in Mr Atkinson's account and was his money. The section 218 notices were given to the bank on the basis of assessments made by the Commissioner in respect of four tax years. Those notices of assessment were served upon Mr Atkinson by their being left in a letterbox at 15 Benelong Crescent, Bellevue Hill, New South Wales. Within an hour after the notices of assessment were left in that letterbox, the section 218 notices were served upon the bank and the bank complied with them. I do not think the evidence shows just how swiftly the bank complied with the notices but it was quickly, it seems. 4 The case which Judge Naughton considered was whether the service of the notices of assessment had taken place before the service of the notices under section 218 upon the bank. The answer to that question depended upon the Income Tax Assessment Act and certain income tax regulations. The relevant text of the Act and the regulations are set out in the reasons of Judge Naughton. His conclusion was that upon the proper construction of the Act and the regulations, service for purposes of the Act was effected at the time when the notices of assessment went into the letterbox at 15 Benelong Crescent. 5 It is the view of this Court that his Honour was correct in coming to that conclusion and this Court agrees generally with the reasons given by Judge Naughton for coming to that conclusion. It followed from his conclusion about the timing of the service of the notices of assessment as being before the service of the section 218 notices that the procedure under section 218 had been validly carried out by the Commissioner and the bank. Accordingly, Judge Naughton dismissed Mr Atkinson's case and entered judgment for the Commissioner. 6 Mr Atkinson appealed to this Court. Mr Atkinson filed written submissions earlier this year and then again later during this month. These later submissions consisted of three documents, one headed "submission of fact," one headed "summary of argument, volume 1," and the other "summary of argument, volume 2." These documents, together with the earlier ones, set out Mr Atkinson's views on a number of matters besides those which this Court is concerned with in this appeal. 7 Mr Atkinson's primary complaint is that the Commissioner was wrong in raising the notices of assessment against him which were served on 21 May 1998. That matter is something that this Court cannot investigate in this appeal. The Court has been told that Mr Atkinson objected to the assessments and that those objections were disallowed by the Commissioner. Further, that he then appealed in the Federal Court, which is the proper jurisdiction for hearing appeals against dismissals of objections against assessments, and that in the Federal Court his appeal was dismissed. 8 Proceedings are still on foot by way of which, in theory, it is still possible that Mr Atkinson might succeed in having his objections allowed. The circumstances surrounding that possibility are rather complicated and it is not necessary to deal with them because, as far as this Court is concerned, the primary fact is that the notices of assessment are currently on foot and have been held by competent authority to be valid, even although, as I have mentioned, there is in theory a possibility that the assessments may yet be set aside. But on the basis upon which this Court is bound to approach the matter, both now and at the time when the proceedings were before Judge Naughton, the notices of assessment had to be treated as valid and effective. 9 On that basis, once the notices of assessment were held to have been served before the section 218 notices, Mr Atkinson's proceedings against the Commissioner in the District Court had to fail for the reasons given by Judge Naughton and adopted, generally speaking, in this Court. The result is that this Court is of the view that there is no mistake in the judgment entered by Judge Naughton against Mr Atkinson and we are bound to dismiss Mr Atkinson's appeal with costs. 10 ********