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21 Nov 11 Commissioner granted stay on condition of part payment - Multiflex

The Federal Court (Edmonds J) has ordered that the Full Federal Court's order of mandamus made against the Commissioner on 11 November 2011 be stayed until 5pm on 13 December 2011, conditional on the Commissioner paying to the taxpayer the sum of $465,000 before 23 November 2011. The sum of $465,000 is approximately half the GST refund owed by the Commissioner to the taxpayer for the months of January to May 2011.

The Commissioner sought the stay of the Full Federal Court's order to enable him to seek special leave to appeal to the High Court on 9 December 2011, pursuant to an application for expedition.

In expressing the view that there was a substantial prospect that special leave to appeal would not be granted, Edmonds J said at para 19

"As the legislation stands at the present time, the substantive issue is undoubtedly a matter of public interest. However, as the Full Court pointed out at [1] and [41] of its reasons, the remedy for the Commissioner’s concern about the operation of s 35-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘the GST Act’) lies not with the courts, but with the legislature. This conclusion is reinforced by the preparation of legislation by Treasury to provide the Commissioner with a power to retain funds: refer s 8AAZLGA, Exposure Draft of Tax Laws Amendment (2011 Measures No 8) Bill 2011, dated 22 August 2011. The relevant provisions are intended to have a commencement date of 1 July 2012. To the extent the payment of a refund to Multiflex (and other registered persons) could be regarded as a matter of public interest, it is a matter that the government intends to address – giving any jurisprudence on the topic a very short shelf life. In the face of this proposed legislation, there is, in my view, a real prospect that the High Court will conclude that it is not appropriate to grant special leave."

FCT v Multiflex Pty Ltd [2011] FCA 1316 (Federal Court, Edmonds J, 17 November 2011).

On 21 November 2011, the High Court (Gummow J) granted the Commissioner's application for expedition of the special leave application, which will be heard on 9 December 2011.

FCT v Multiflex Pty Ltd [2011] HCATrans 320 (High Court, Gummow J, 21 November 2011).

 


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