Deputy Commissioner of Taxation v Panayi [2016] NSWDC 113

District Court New South Wales

Medium Neutral Citation: Deputy Commissioner of Taxation v Panayi [2016] NSWDC 113 Hearing dates: 18 and 19 February 2016; 5 April 2016; 4 May 2016 Date of orders: 24 June 2016 Decision date: 24 June 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for $369,904.86. (2) Liberty to bring in Short Minutes of Order reflecting the mathematically agreed sum of interest on the judgment. (3) Defendant pay plaintiff's costs. (4) Liberty to apply in relation to costs. Catchwords: TAXATION – PAYG deductions from wages and salaries of employees of company – withholdings not remitted to the ATO – liability of defendant as director to statutory penalty – whether defendant the sole director of the company and thus liable for penalty – whether defendant unable to take part in management because of illness or other good reason – whether defendant knew he was a director – credit issues arising from company documentation referring to the defendant as a director – whether any penalty payable should be regarded as remitted under s 269-30(1) on the basis that amendments to s 269-30 of the TAA did not affect penalties imposed prior to that date Legislation Cited: Corporations Act 2001 (Cth), ss 9, 206F, 248E and 1274B(2) Evidence Act 1995 (NSW), ss 91 and 178 Taxation Administration Act 1953 (Cth), ss 222AOJ, 269-20, 269-30 and 269-35(1) Tax Laws Amendment Act (2012 Measure Act No. 2) 2012 (Cth) Cases Cited: Ainsworth v Burden [2005] NSWCA 174 Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152 Clark v Perkins and LVS Meat Company Pty Ltd (in liq) (2002) 84 SASR 330 De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565 Deputy Commissioner of Taxation v George (2002) 55 NSWLR 510 Deputy Commissioner of Taxation v Rablin [2016] QSC 68 Deputy Commissioner of Taxation v Roche [2014] WASC 222 Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Hamod v NSW [2011] NSWCA 375 Jones v Dunkel (1959) 101 CLR 298 Kocic v Deputy Commissioner of Taxation [2011] NSWCA 322 M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 McGlen-McLeod v Galloway [2012] NSWCA 368 Miller v Deputy Commissioner of Taxation (1997) 26 ACSR 533; (1998) 98 ATC 4059 Roche v Deputy Commissioner of Taxation [2015] WASCA 196 Rusu v National Australia Bank [1999] NSWSC 539 Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 Syddall v National Mutual Life Association of Australasia Ltd [2011] QSC 389 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Uratoriu v Commissioner of Taxation [2010] FCA 1157 Category: Principal judgment Parties: Plaintiff: Deputy Commissioner of Taxation Defendant: Peter Panayi Representation: Counsel: Plaintiff: Mr J Mitchell / Mr T Cleary Defendant: Mr D Pritchard SC / Mr A Macauley