Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 Hearing dates: 10 February 2014 Decision date: 04 April 2014 Before: Bathurst CJ at [1]; Beazley P at [2]; Gleeson JA at [3]; Bergin CJ in Eq at [4]; Tobias AJA at [5] Decision: 1. Appeal allowed. 2. Set aside the orders made by his Honour Judge Peter Taylor SC on 31 August 2012. 3. Judgment for the appellant in the sum of $365,066.49. 4. Remit to his Honour Judge Peter Taylor SC for determination the question of interest on the judgment sum as well as the costs of the proceedings at first instance. 5. Each party to pay its and his own costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TAXATION - income tax - director penalty notice - repeal of Division 9 of Part VI of the Income Tax Assessment Act 1936 (Cth) -effect of transitional provisions in Tax Laws Amendment (Transfer of Provisions) Act 2010 (Cth) - whether Acts Interpretation Act 1901 (Cth) operated to preserve the Commissioner's right to recover the penalty - effect of Schedule 7 of the Tax Laws Amendment (2011 Measures No 7) Act 2011 (Cth) - whether fresh director penalty notice required to be served Legislation Cited: Acts Interpretation Act 1901 (Cth) Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) Tax Laws Amendment (2011 Measures No. 7) Act 2011 (Cth) Tax Laws Amendment (Transfer of Provisions) Act 2010 (Cth) Taxation Administration Act 1953 (Cth) Cases Cited: Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354; (2007) 245 ALR 150 Deputy Commissioner of Taxation v Woodhams [2000] HCA 10; (2000) 199 CLR 370 Deputy Commissioner of Taxation v Zammitt [2012] NSWDC 135; (2012) 15 DCLR (NSW) 104 Farah Construction Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 Minister for Immigration and Multicultural Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 Reardon v Deputy Commissioner of Taxation [2013] HCATrans 130 Reardon v Deputy Commissioner of Taxation [2013] QCA 46; (2013) 275 FLR 9 Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; (2011) 80 NSWLR 226 Category: Principal judgment Parties: Deputy Commissioner of Taxation (Appellant) Kevin Emmanuel Zammitt (Respondent) Representation: R Derrington QC / D Jay (Appellant) M Speakman SC / P Rodionoff (Respondent) Solicitors: Australian Government Solicitor (Appellant) Bongiorno Lawyers (Respondent) File Number(s): 2012/299263 Publication restriction: None Decision under appeal Jurisdiction: 9101 Citation: Deputy Commissioner of Taxation v Zammitt [2012] NSWDC 135 Date of Decision: 2012-08-31 00:00:00 Before: P Taylor SC DCJ File Number(s): 2010/100600