DEPUTY COMMISSIONER OF TAXATION v NERCESSIAN [2006] NSWCA 268

Reported Decision : 67 NSWLR 215

New South Wales Court of Appeal

CITATION: DEPUTY COMMISSIONER OF TAXATION v NERCESSIAN [2006] NSWCA 268 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 September 2006

JUDGMENT DATE: 29 September 2006

JUDGMENT OF: Mason P at 1; Santow JA at 2; McColl JA at 38

DECISION: Appeal allowed with costs; see orders at [37].

CATCHWORDS: TAXATION – Whether the relevant notices were "given" pursuant to s222AOF of the Income Tax Assessment Act 1936 (Cth) notwithstanding that the Commissioner had not searched return or notice from whence the address was extracted but only searched ASIC's public database MASCOT – meaning of "ASIC document" in s222AOF(2) – observations on service pursuant to s28A and 29 of the Acts Interpretation Act 1901 (Cth) as alternative mode of service.

Acts Interpretation Act 1901 (Cth) ss28A and 29 LEGISLATION CITED: Income Tax Assessment Act 1936 (Cth) s222AOC(1), s222AOE, s222AOF, s222AOG Taxation Administration Act 1953 s8AAZB

Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 CASES CITED: Deputy Commissioner of Taxation v Keck & Anor [2006] NSWSC 677 Kiff v Deputy Commissioner of Taxation [2005] QDC 456

PARTIES: DEPUTY COMMISSIONER OF TAXATION (Appellant) Raffie NERCESSIAN (Respondent)

FILE NUMBER(S): CA 40805/05

COUNSEL: D J FAGAN, SC/ R S QUINN M A BARKO

SOLICITORS: ATO General Counsel (Appellant) O'Neill Marengo (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 250/04