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11 Sep 08 No deliberate maladministration by Commissioner - Marijancevic

The Full Federal Court (Ryan, Kenny and Stone JJ) has dismissed the taxpayer's appeal from the decision of Sundberg J who had, in recovery proceedings against the taxpayer, dismissed an application by the taxpayer that certain default assessments were void on the grounds of a lack of bona fides and the existence of a collateral purpose.

In finding no evidence of maladministration on the part of the Commissioner, the Full Federal Court commented, at para 13, on the recent High Court decision in FCT v Futuris Corporation Limited [2008] HCA 32:

"...the primary judge decided the assessment proceeding by reference to Richard Walter. In the meantime, however, the High Court has delivered judgment in Futuris, in which Gummow, Hayne, Heydon and Crennan JJ decided (at [66]-[70]) that there is no scope for the Hickman principle as arguably expounded in Richard Walter in a judicial review application challenging the validity of an assessment within s 6(1) of the ITAA36, whether such application was made under s 75(v) of the Constitution or s 39B of the Judiciary Act. The majority in Futuris held (at [68]) that s 175 of the ITAA36 permits a challenge to an assessment on the basis that it was not made bona fide, although this is not by application of the Hickman principle as variously explained in Richard Walter: compare Bonnell v Commissioner of Taxation [2008] FCAFC 146 at [20] per Lindgren and Edmonds JJ. Before it can be said that an assessment has not been made bona fide, it must be shown that there was "conscious maladministration" of the assessment process or the ITAA36 (Futuris at [25], [52]) or some deliberate failure to administer the law according to its terms (Futuris at [55])."

Marijancevic v Mann [2008] FCAFC 161 (Full Federal Court; Ryan, Kenny and Stone JJ; 8 September 2008).

For a copy of the decision, go here.


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