TRIMCOLL PTY LTD v DEPUTY COMMISSIONER OF TAXATION [2007] NSWCA 307

New South Wales Court of Appeal

CITATION: TRIMCOLL PTY LTD v DEPUTY COMMISSIONER OF TAXATION [2007] NSWCA 307

HEARING DATE(S): 21 September 2007

JUDGMENT DATE: 30 October 2007

JUDGMENT OF: Spigelman CJ at 1; Ipp JA at 2; Basten JA at 3

(1) Allow the appeal and set aside the order made by the primary judge. DECISION: (2) Order the Commissioner to pay the Appellant's costs of the appeal.

EVIDENCE – request to call witnesses – Evidence Act 1995 (NSW), s 167 – documents sought to be relied on as evidence of sham transactions – previous representation – authenticity, identity or admissibility of document or thing – operation of s 167(c) Evidence Act not limited to exceptions to hearsay rule EVIDENCE – reasonableness of request to call witnesses – reasonable refusal to comply with request to call witnesses – Evidence Act 1995 (NSW), s 169 – exercise of Court's discretion to order party to comply with request to call witnesses CATCHWORDS: TAXATION – adequacy of pleadings – statement or averment in statement of claim prima facie evidence of matter averred – no reversal of legal burden of proof – Tax Administration Act 1953 (Cth) s 255-50 TAXATION – income tax – failure to make deductions from prescribed payments – liability of eligible paying authority – payees provided payee declarations varying prescribed payment deduction to nil – payees allegedly mere agents or conduits for third parties not entitled to deduction variation to whom payments were in fact due –Income Tax Assessment Act 1936 (Cth) s 221YHDA, s YHH(1) WORDS & PHRASES – "authenticity" – "identity – "previous representation" – "representation"

Evidence Act 1995 (NSW), ss 59, 60, 69, 166, 167, 168, 169, Part 4.6 Income Tax Assessment Act 1936 (Cth), ss 221YHA, 221YHB, 221YHC, 221YHD, 221YHH, 221YHN, 221YHAAF, 221YHDA, Part VI, Division 3A LEGISLATION CITED: Income Tax Regulations 1936 (Cth), r 126 Tax Administration Act 1953 (Cth), s 255-50 Uniform Civil Procedure Rules 2005 (NSW), r 14.27