Deputy Commissioner of Taxation v Ferreira [2018] NSWDC 338

District Court New South Wales

Medium Neutral Citation: Deputy Commissioner of Taxation v Ferreira [2018] NSWDC 338 Hearing dates: 1 November 2018 Date of orders: 01 November 2018 Decision date: 01 November 2018 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $131,513.65. (2) Defendant to pay the plaintiff's costs in the fixed sum of $4,658. Catchwords: TAXES AND DUTIES – PAYG tax – non-payment by company – director – penalty – remission - liquidator appointed - evidence – affidavit evidence - hearsay – inferences – burden of proof – statutory reversal of onus – proof by certificate – proof by averment Legislation Cited: Evidence Act 1995, s 69 Taxation Administration Act 1953, sch 1, s 255-45, s 255-50, s 269-20, s 269-30 Category: Principal judgment Parties: Deputy Commissioner of Taxation – plaintiff Rui Ferreira - defendant Representation: Counsel:

Solicitors: Hunt & Hunt – plaintiff Paul Bard Lawyers - defendant File Number(s): 2017/280717 Publication restriction: None

Judgment 1. The Deputy Commissioner of Taxation seeks judgment from Rui (or Paul) Ferreira in the sum of $131,513.65 plus interest and costs. The claim is based upon the non‑payment of PAYG tax withheld by a company of which Mr Ferreira was at all relevant times a director. 2. By his defence, Mr Ferreira denied liability generally, and also on the particular bases of: 1. that a liquidator had been appointed to the company and therefore any penalty imposed on the director was remitted; [1] and 2. that no director penalty notice had been served. [2] 1. The amended statement of claim asserted that penalties owed by Mr Ferreira in respect of unpaid PAYG tax withheld by the company in the sum of $131,513.65 ("the taxation debt") remained due and payable. [3] This averment in the claim is, by s 255‑50(1) of sch 1 to the Taxation Administration Act 1953, prima facie evidence of this debt. 2. In addition, the evidence included a certificate under s 255‑45 of sch 1 to the Act in the following terms: "CERTIFICATE UNDER SECTION 255-45 OF SCHEDULE 1 TO THE TAXATION ADMINISTRATION ACT 1953 Pursuant to Section 255-45 of Schedule 1 to the Taxation Administration Act 1953 I hereby certify that in respect of Paul Da Silva Ferreira: 1. Paul Da Silva Ferreira has a tax related liability, namely penalties arising under section 269-20 of Schedule 1 to the Taxation Administration Act 1953 ("TAA 1953"). 2. Notice required to be served on Paul Da Silva Ferreira under section 269-25 of Schedule 1 to the TAA 1953 was served on him on 3 October 2014 in relation to that tax related liability in accordance with section 269-50 of Schedule 1 to the TAA 1953. 3. The amount of $131,513.65 is a debt due and payable by Paul Da Silva Ferreira to the Commonwealth of Australia in respect of the tax related liability referred to in this certificate. DATED: 03 July 2018 [signature] Deputy Commission of Taxation of the Commonwealth of Australia". [4] 1. The certificate was signed by the Deputy Commissioner and certified that Mr Ferreira had a tax related liability, had been served with a notice, and that the taxation debt was due and payable to the Commonwealth. This certificate is prima facie evidence of these matters by virtue of s 255‑45(1) of sch 1 to the Act. 2. In addition to these two formal forms of evidence, there was affidavit evidence proving: 1. the service of the director penalty notices on 3 October 2014; [5] 2. the taxation accounts of Mr Ferreira, which showed that the taxation debt remained current; [6] and 3. that Mr Ferreira was the director of the company at all relevant times. [7] 1. Mr Ferreira objected to paragraph 20 of the affidavit of Anita Tiku dated 3 July 2018, which dealt with the date the company reported the PAYG withheld debt to the Deputy Commissioner. The paragraph was in the following terms: "In respect of the amounts detailed in the tables below, relative to the claim for director penalty liabilities, the Plaintiff's records show that the Company did not within the period of three months following the due date of the amount withheld, notify the Plaintiff in accordance with section 16-150 of Schedule 1 to the TAA 1953 of the amount the Company was obliged to pay the Plaintiff. The Amount Withheld Period of Withholding (the first deduction day was a day falling within this period) Due Date Date reported First 1 July 2013 to 30 September 2013 25 November 2013 25 August 2014 Second 1 October 2013 to 31 December 2013 28 February 2013 25 August 2014". [8]