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Webb v Deputy Commissioner of Taxation [2017] FCA 1520

In this recent decision of the Federal Court, O’Callaghan J examines a self-represented taxpayers’ application for an extension of time to appeal from the Federal Circuit Court. This decision shows the importance of complying with the appropriate procedures in lodging an appeal and having an application with sufficient merits. With the greatest respect to Mr Webb this case demonstrates the difficulty of representing yourself in the Federal Court.

Following a sequestration order made on 30 May 2017 by the Federal Circuit Court, the taxpayer filed a notice of appeal on 19 September 2017, outside of the 21 day period provided under Rule 36.03 of the Federal Court Rules.

O’Callaghan J in his decision reiterated the well-established principles for allowing an extension of time, which include:

  • whether the applicant has an acceptable explanation for the delay;
  • whether the respondent would suffer prejudice in light of the delay should an extension be granted; and
  • the merits of the substantial application.

In the present case, O’Callaghan J found the taxpayer’s argument that the incorrect form was filed did not demonstrate an acceptable explanation for the delay.

Furthermore, O’Callaghan J found that there was no reasonable prospect of success of the appeal as the contentions outlined in the taxpayer’s affidavit were “self-evidently misconceived”. In the taxpayer’s affidavit, he contended that:

  • the Registrar of the Federal Circuit Court did not have authority to adjudicate the matter;
  • the Deputy Commissioner of Taxation did not have the authority to prosecute the matter;
  • the Registrar had given undue weight to the Income Tax Assessment Act 1936 as it has not been lawfully enacted, as it does not have a proclamation certificate prescribed by the Constitution;
  • the Australian Taxation Office was not a legal entity;
  • the Deputy Commissioner of Taxation did not have standing;
  • the Federal Court did not have jurisdiction to proceed without a trial by jury;
  • the “Voice of the Australian Constitution” is relevant.

 

Co-authored with Ben Caratti
 

Posted in: Tax & ATO News Australia at 08 January 18

A great result for Crown Insurance Services Limited

On Friday 2 November 2012, the Full Federal Court delivered a judgment in favour of our client, Crown Insurance Services Limited and found for our client in a 2:1 decision.

 

In a rather technical decision, the Full Federal Court found that the ATO’s appeal was incompetent – that is, that the ATO should not have attempted to appeal the factual findings of the Administrative Appeals Tribunal which found, as a matter of fact, that the source of our client’s income was not in Australia.
 
Lander and Foster JJ dismissed the Commissioner's appeal, deciding the appeal was incompetent as the Commissioner did not raise a question of law for s44(1) purposes.  Their Honours analysed the authorities on this issue in great detail but did not address the substantive question once they concluded the appeal should be dismissed for want of jurisdiction.
 
Jessup J decided there was a question of law, as the facts found by the Tribunal must necessarily lead to the conclusion that Crown Insurance indirectly derived its income from Australian sources.  His Honour placed great weight on the adverb "indirectly" to distinguish this case from the authorities
 
This is a great result for this client who has been fighting with the ATO for over ten years.
 

Posted in: Tax & ATO News Australia at 05 November 12

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Tax & ATO News Australia

Author: David Hughes

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