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13 Jun 06 Issue of notice under s 222APE not reviewable - Guss

The Full Federal Court (Gyles, Edmonds and Greenwood JJ) has, by majority, dismissed an appeal by a director of a company upon whom a notice under s 222APE ITAA 1936 had been served, in which the director sought review of the Commissioner's decision to issue the notice under the Administrative Decisions (Judicial Review) Act 1977. Under the notice, the director was required to do one of 4 things, failing which the Commissioner became entitled to recover from him a penalty calculated by reference to unpaid tax owed by the company.

Gyles J (dissenting) held that the decision to issue the notice was an administrative decision under an enactment which was subject to review under the ADJR Act. Accordingly, he would have allowed the director's appeal. Greenwood J agreed that the decision to issue the notice was potentially an administrative decision under an enactment which was subject to review under the ADJR Act. However, his Honour held that the issue of the notice did "not exhibit the characteristics of a resolution or a determination of a matter in issue deriving from a process of reasoning whether that resolution engages a complex or an entirely unsophisticated process of reasoning [with the result that] there is no ‘decision’ for the purposes of the ADJR Act, in this primary sense of the word". Accordingly, Greenwood J dismissed the director's appeal. Edmonds J held that "[t]he notice did not itself create any liability for the appellant; nor did it affect any existing right of the appellant, or create any right or obligation in the appellant going forward". Accordingly, Edmonds J also dismissed the director's appeal.

Guss v FCT [2006] FCAFC 88 (Full Federal Court; Gyles, Edmonds and Greenwood JJ; 8 June 2006).

For a copy of the decision, go here


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