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04 Apr 11 Garnishee notice held invalid - De Martin and Gasparini

The Federal Court (Bennett J) has held that a notice issued by the Commissioner pursuant to s 260-5 of Schedule 1 of the Taxation Administration Act 1953, requiring De Martin and Gasparini Pty Limited (DMG) to pay money owing to Arndell Formwork (NSW) Pty Limited directly to the Commissioner, was invalid.

Page1 of the notice directed payments to be made to the Commissioner by cheque every four weeks. This time period did not refer to the date of the notice or any date from which payments were to be made. Page 2 of the Notice directed payments to be made to the Commissioner every two weeks from the date of the Notice. The Court held that the recipient of the Notice (DMG) was left in doubt as to its obligations as to the specified time for payment. Therefore, the notice was relevantly ambiguous and it failed to comply with the statutory requirement under s 260-5 that it nominate a specified time for payment. It was therefore invalid.

The Court rejected an alternative argument that it was unclear whether the timing of the payments under the notice was determined by reference to the date the notice bears or the date on which the notice was received. The Court held that the repeated references to “this notice” indicate that the date of “this notice”, in the context, was the date that it bears, not the date on which it was served.

FCT v De Martin and Gasparini Pty Ltd [2011] FCA 286 (Federal Court, Bennett J, 31 March 2011).

 


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