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The Federal Court (Logan J) has set aside a Departure Prohibition Order (DPO) made by the Commissioner and issued to the taxpayer, whose liability to tax was said to total $6,435,103.31. The DPO was set aside on the basis that the DPO did not reflect the decision made by the person authorised by the Commissioner's delegate but, rather, by unauthorised subordinates who completed the details in the DPO.

Alternatively, the DPO was set aside on the basis that, at the time that the DPO was made, there did not exist reasonable grounds on which to base a belief that it was desirable to issue a DPO for the purpose of ensuring that the taxpayer did not leave Australia. In reviewing the evidence, the Court said, at para 98:

"Mr Pattenden’s history is one of attending requests made by the ATO for interviews. He has known that he and companies in the ACBF Group were the subject of increasing scrutiny by the ATO for some five years. He had ample opportunity, prior to the making of the amended assessments in January 2008, to depart Australia permanently and to send his wealth abroad. One might reasonably apprehend that he could have adopted a like attitude to divorce proceedings here. There is no evidence that he did. For all of that time, he has held a British passport. Notwithstanding this, he has resisted the temptation either to "flee" there (to adapt the language of the ATO in the DPO submission) or to retire there. Instead, the only temptation to which he has succumbed is to retire to New Zealand, a country in which the recovery of Australian tax is readily possible."

Pattenden v FCT [2008] FCA 1590 (Federal Court, Logan J, 24 October 2008).

For a copy of the decision, go here.

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