Deputy Commissioner of Taxation v Lee; Deputy Commissioner of Taxation v Silverbrook (No. 2) [2019] NSWSC 954

Supreme Court New South Wales

Medium Neutral Citation: Deputy Commissioner of Taxation v Lee; Deputy Commissioner of Taxation v Silverbrook (No. 2) [2019] NSWSC 954 Hearing dates: 25 March 2019 & 1 April 2019 Date of orders: 31 July 2019 Decision date: 31 July 2019 Jurisdiction: Common Law Before: Davies J Decision: The plaintiff should bring in short minutes showing calculation of interest to the date of judgment. Catchwords: TAXES AND DUTIES – proceedings for recovery against defendants under Taxation Administration Act 1953 (Cth) – defendants directors of a company – company had failed to pay withholding tax, estimates in relation to amounts withheld and superannuation guarantee charges – director penalty notices issued to defendants in relation to all three tax liabilities – evidence certificates provided by the plaintiff disclosed that the defendants did not pay the amounts for which the company was liable – whether the defendants had a defence to the plaintiff's claim – several defences relied upon by the defendants unavailable in recovery proceedings – only available defence was the 'all reasonable steps' defence – s 269-35 of Sch 1 of the Taxation Administration Act – whether the defendants took all reasonable steps – where the company went into voluntary liquidation – liquidation occurred outside the time allowed in s 269-30 of Sch 1 – liquidation cannot be relied upon by the defendants as evidence of steps taken – where the evidence relied upon by the defendants in support of this defence was largely in inadmissible form – conclusions, statements of belief and statements of intention – evidence contained unsubstantiated references to the defendants seeking external professional advice – evidence referred to the establishment of trusts – evidence highlighted the inadequacy of the company's tax compliance framework – insufficient proof of all reasonable steps – defence not made out – plaintiff entitled to judgment Legislation Cited: Acts Interpretation Act 1901 (Cth) s 29 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9 Income Tax Assessment Act 1936 (Cth) ss 222AOB, 222AOJ Superannuation Guarantee (Administration) Act 1992 (Cth) ss 33, 36 Taxation Administration Act 1953 (Cth) divs 12, 16, 250, 255, 268, 269, 350 Uniform Civil Procedure Rules 2005 (NSW) r 29.7 Cases Cited: Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17; (2017) 347 ALR 134 Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152; [2005] NSWCA 84 Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32 Deputy Commissioner of Taxation v George (2002) 55 NSWLR 511; [2002] NSWCA 336 Deputy Commissioner of Taxation v Lee; Deputy Commissioner of Taxation v Silverbrook (No. 1) [2019] NSWSC 346 Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722; [2002] NSWCA 390 Texts Cited: Nil Category: Principal judgment Parties: Deputy Commissioner of Taxation (Plaintiff) Janette Lee (Defendant) Kia Silverbrook (Defendant) Representation: Counsel: S Foda (Plaintiff) Janette Lee (In person for the Defendants)