Lee v Deputy Commissioner of Taxation; Silverbrook v Deputy Commissioner of Taxation [2020] NSWCA 95

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lee v Deputy Commissioner of Taxation; Silverbrook v Deputy Commissioner of Taxation [2020] NSWCA 95 Hearing dates: 10 March 2020 Date of orders: 19 May 2020 Decision date: 19 May 2020 Before: Payne JA at [1]; McCallum JA at [81]; Simpson AJA at [82]. Decision: (1) appeal dismissed; (2) appellants to pay the respondent's costs. Catchwords: TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – estimates provisions – where Notice of Estimate issued – where company did not pay the amount of the Notice of Estimate – where Director Penalty Notices issued – where appellants placed company into liquidation – whether Director Penalties were remitted pursuant to s 269-30(1) of Schedule 1 to the Taxation Administration Act 1953 – whether trial judge erred in finding that s 269-30(2) Item 2 of Schedule 1 to the Taxation Administration Act 1953 applied in respect of the Director Penalties

TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – averments under s 255-50 of Schedule 1 to the Taxation Administration Act 1953 – where averments made as to unpaid PAYG amounts withheld – whether averments themselves sufficient evidence that the company had withheld PAYG amounts and not paid those amounts to the Commissioner Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58 Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) Schedule 1 to the Taxation Administration Act 1953 (Cth), ss 12-35, 16-25, 16-75, 16-95, 255-45, 255-50, 268-10, 268-15, 268-20, 268-25, 268-40, 269-10, 269-15, 269-20, 269-25, 269-30, 269-35, 269-40, 350-10 Superannuation Guarantee (Administration) Act 1992 (Cth), s 36 Tax Laws Amendment (2012 Measures No. 2) Act 2012 (Cth) Treasury Laws Amendment (2018 Measures No. 4) Act 2019 (Cth) Cases Cited: Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152; [2005] NSWCA 84 CLK Kitchens & Joinery Pty Ltd v Commissioner of Taxation (2019) 268 FCR 166; [2019] FCA 1086 Deputy Commissioner of Taxation v Lee; Deputy Commissioner of Taxation v Silverbrook (No 1) [2019] NSWSC 346 Texts Cited: Explanatory Memorandum to the Insolvency (Tax Priorities) Legislation Amendment Bill 1993, 19-20, 25 Explanatory Memorandum to the Tax Laws Amendment (2012 Measures No. 2) Bill 2012 (Cth) Insolvency (Tax Priorities) Legislation Amendment Bill 1993 Category: Principal judgment Parties: Proceedings 2019/251545 Janette Lee (Appellant) Deputy Commissioner of Taxation (Respondent)