Bai v Commissioner of Taxation

REASONS FOR JUDGMENT 1 On 3 September 2015, I published my reasons for concluding that the applicant's appeal from the Administrative Appeals Tribunal succeeded on one of the three bases pressed in argument: see Bai v Commissioner of Taxation [2015] FCA 973. 2 I will use the same abbreviations that I used in those reasons in what follows here. I held that the Tribunal had applied the wrong onus of proof to the determination of the question of whether the assessment was excessive (i.e. wrong) when the taxpayer had attempted to satisfy it that there was no fraud or evasion within the meaning of item 5 in the table to s 170(1) of the 1936 Act, so as to justify the Commissioner's original decision to issue the challenged amended assessment. I found that the Tribunal had required the taxpayer to negate beyond reasonable doubt that there had not been fraud or evasion, instead of considering whether she had satisfied it of this on the balance of probabilities. 3 Thus, if the taxpayer, on a remitter, can satisfy the Tribunal, when it applies the correct onus of proof, that there had not been fraud or evasion, the amended 2005 assessment must be set aside. I directed the parties to bring in short minutes of order to give effect to my reasons by 18 September 2015. Unfortunately, they could not agree on those orders and, after I made consent directions, each filed a competing form of orders and short submissions in support of it. The contentious issue is the substance of the conditions that the order for remitter should contain.