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22 Aug 12 Decision Impact Statement - Soong

The ATO has published a Decision Impact Statement in relation to the New South Wales Court of Appeal (NSWCA) decision in Soong v DCT [2011] NSWCA 26; 2011 ATC 20-245. The Commissioner's application for special leave to appeal to the High Court was refused - see DCT v Soong [2011] HCATrans 212.

The case concerned the application of director penalty notices (DPNs) given pursuant to former s 222AOE of ITAA 1936 (repealed effective 1 July 2010). The case overturned the decision of DCT v Meredith [2007] NSWCA 354 ("Meredith").

The Decision Impact Statement states that in accordance with the decision of the NSWCA in Soong, a DPN issued under the former s 222AOE is, subject to the matters noted below, taken to be given at the time that the DPN would have been delivered in the ordinary course of post. Consequently, the intended recipient would have 14 days after the day of delivery in the ordinary course of post to cause the company to comply with s222AOB and achieve remission of penalties.

Note first that s 269-25 in Schedule 1 to the Taxation Administration Act 1953 applies to DPNs issued by the Commissioner on and after 1 July 2010 and provides that a DPN is taken to be given at the time the Commissioner posts it.

Note secondly that the passage of Schedule 7 to the Tax Laws Amendment (2011 Measures No 7) Act 2011 ("TLA 2011"). TLA 2011 applies in circumstances where the Commissioner gave (or purported to give) a notice under the former s 222AOE on or after 10 December 2007 by sending it by pre-paid post in accordance with s 28A of the Acts Interpretation Act 1901 ("AIA"). In those circumstances, and for the purposes of the former s 222AOE, the legislative amendments prescribe that the notice is taken as being given at the time the Commissioner sent it by pre-paid post in accordance with s 28A of the AIA. The effect is that, retrospectively, the precedential view of the law under Meredith is restored.

 


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