Bayeh v Deputy Commissioner of Taxation

BEAUMONT J: 1 Before the Court are notices of motion in several matters seeking summary dismissal of applications made by way of "appeals" to the Court against decisions by the Deputy Commissioner dated 25 March 1999 disallowing the taxpayer's objections against amended assessments of income tax in five cases, and in one case against an assessment of provisional tax. 2 A number of points have been argued on behalf of the taxpayer in resisting the application for summary dismissal. It is convenient that I deal with one of those points now, on the assumption that I will make, for the purposes of the argument only and without prejudice to the taxpayer's submissions on the other points, that the period of 60 days referred to in s 14ZZN of the Taxation Administration Act 1953 had expired before the appeals were lodged. Section 14ZZN provides: "14ZZN. An appeal to the Federal Court against an appealable objection decision must be lodged with the Court within 60 days after the person appealing is served with notice of the decision." 3 The preliminary point that has arisen is whether the provisions of s 14ZZN are mandatory, in the sense that an appeal lodged after the 60 day period there mentioned deprives the Court of jurisdiction to entertain the matter at all; or whether, as the taxpayer suggests, the Court is empowered to grant an extension of time in which an appeal may be lodged, as an incident of its jurisdiction under s 14ZZN. 4 A similar question arose for determination by Hill J in Kimberly-Clark Australia Pty Ltd v FC of T (1994) 94 ATC 4203, where his Honour (at 4205) pointed out the injustice that could arise in the absence of any power to extend time in a case such as the present, especially in the light of the counterpart provision enabling the Administrative Appeals Tribunal to grant an extension of time (see Administrative Appeals Tribunal Act 1975 s 29(7)). Hill J went on to note (at 4205) that consideration should immediately be given by the legislature to return to the situation which existed before the enactment of the Taxation Laws Amendment Act (No 3) 1991 (Cth) "[s]o that the court is able to do justice as between the parties, and grant an extension of time in an appropriate case." 5 It appears that his Honour's message has not been received at its intended destination. It is common ground that there is no express power in the Taxation Administration Act 1953 to extend time in a case such as the present. The question therefore is whether, as a matter of the process of statutory construction, it is appropriate to imply into the statutory scheme a provision that an extension may be granted in a proper case, even if this is a departure from the literal meaning of the words of s 14ZZN (cf. Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297). 6 Although I think there is some force in the argument that there has been an oversight in the enactment of the provisions of the Taxation Laws Amendment Act (No. 3) 1991 by omitting a provision of the kind previously enacted, thereby enabling the Court, for good reason, to grant an extension of time, I have come to the view, ultimately, that that implication should not be made (cf. Cooper Brooks per Mason and Wilson JJ at 323). It seems to me that the question whether or not the Court should be given the power to extend time, is entirely a matter of policy for the Parliament; so that the omission to make such a provision could not necessarily be said to be a "mistake" (to use the language of Gibbs CJ in Cooper Brooks at 307) or an "oversight on the part of the draftsman" (to use the words of Mason and Wilson JJ in Cooper Brooks at 323). The fact is that there are areas, in other statutory contexts, where the Parliament has decided, as a matter of policy, that there should be no possible scope for an extension of time to be granted by the Court, whatever the circumstances. An example is s 478 of the Migration Act 1958. It is true that s 478 is expressed in the most explicit language to this effect. But the use of the verb "must" in s 14ZZN is, I think, consistent only with an intention on the part of the Parliament to require, as a jurisdictional fact, that the appeal has to be lodged with the Court within the 60 day period there specified, if the Court is to have any jurisdiction in the matter at all. 7 It is also true, as has been noted, that s 29(7) of its statute does give the Administrative Appeals Tribunal the power to extend time. Yet this is a general provision, applicable in the case of any application to the Tribunal for a review of any decision within the Tribunal's jurisdiction; that is to say, s 29(7) is not, on its face, specifically directed to the grant of an extension of time in a matter such as the present, although the generality of its language would, of course, pick up such a matter if it were before the Tribunal. 8 Finally, I am influenced by considerations of comity in this area. It appears implicit in the reasoning of Hill J in Kimberly-Clark that, in the absence of the application of a transitional provision of the kind there relied upon by his Honour, the Court would have had no jurisdiction to entertain that appeal and no power to extend time. 9 For these reasons, I reject the preliminary argument advanced on behalf of the taxpayer. 10 (I have been asked by counsel for the taxpayer to note that he wishes to submit that Hill J's reasoning in Kimberly-Clark should not be followed.) 11 The remaining point raised, on behalf of the taxpayer, in the motions for summary dismissal relied upon a claim that the Commissioner had not proved service of the objection decision in accordance with the provisions of s 14ZY(3) of the Taxation Administration Act 1953. Section 14ZY(3) provides: "(3) The Commissioner must cause to be served on the person written notice of the Commissioner's objection decision." 12 Service of such a notice is dealt with by reg 170(1) of the Income Tax Regulations 1936, which provides: "170(1) Any notice or other communication by or on behalf of the Commissioner may be served upon any person: (a) by causing it to be personally served on him; or (b) by leaving it at his address for service; or (c) by posting it by prepaid letter post, addressed to him at his address for service; and in any case to which paragraph (c) applies, unless the contrary is proved, service thereof shall be deemed to have been effected at the time when it would, in the ordinary course of post, have arrived at the place to which it was addressed." 13 On behalf of the Commissioner, it is said that service has been established in the present case within the meaning of either par (b) or par (c) of reg 170(1). 14 With respect to par (b) it is accepted on behalf of the Commissioner, that the objection decision was not left at any relevant address in any physical sense. Rather, what he has put for the Commissioner is that the objection decision was served by facsimile. It does not appear that the sending of the document by facsimile transmission can, in any ordinary sense of language, be described as "leaving it". However, I need not pursue this point, since I have come to the view that the provisions of par (c) have been satisfied in the present case. 15 The evidence establishes to my satisfaction and indeed it is not in contest, that the objection decisions were posted by pre-paid letter post. However, two distinct aspects of the application of par (c) are put in issue, as follows: In the first place, it is said that the objection decision was not, within the meaning of par (c) "... addressed to [the taxpayer] at his address for service". 16 The objection decision was posted by pre-paid letter post, addressed to Messrs Hovan and Co who were, and are, the solicitors for the taxpayer, at their business address. The question then arises, can that address be described properly as the taxpayer's "address for service"? 17 The concept of an "address for service" was considered by a Full Federal Court in Sunrise Auto Ltd v Deputy Commissioner of Taxation (1995) 133 ALR 274. It was there held that an "address for service" need not be the taxpayer's place of residence; and that rather, it is intended to be the place where a person may be found or communicated with. Hence the concept is not always synonymous with the word "residence". 18 In my opinion, in the present context, that is to say, the communication of the objection decision to the address of Messrs Hovan and Co, should be treated as the taxpayer's "address for service" within the meaning of the regulation. 19 Messrs Hovan and Co lodged, and it would appear formulated, acting on instructions, the terms of the objection. In those circumstances it would, in my view, be only natural to infer, given the context, one of some technical complexity, that the address of Messrs Hovan and Co was intended to be the place where the taxpayer would and should be communicated with. 20 An address for service, as was noted in Sunrise Auto, is dealt with by regs 36, 37, 38 and 39 of the Income Tax Regulations 1936. 21 It is true that reg 36 requires that an address for service be given by every person in his, her, or its return. It is also true that reg 37 envisages that every such person who has given an address for service and who subsequently changes that address, shall give the Commissioner notice in writing of the new address for service. In the present case, however, there is no evidence that has been adduced, on behalf of the taxpayer, as to the furnishing of such an address, either in a return or subsequently upon the need for a new address for service to be given. I infer, therefore, in these circumstances, that at least for present purposes, the intention of the taxpayer was to nominate the address of Messrs Hovan and Co as the place where he may be communicated with. It follows in my view, that the Commissioner has established, to my satisfaction, that he caused to be served written notice of his objection decision in compliance with the provisions of s 14ZY(3). 22 (Finally, I should note that, on behalf of the taxpayer, it is submitted, for purposes of argument in another place, that I should not follow Sunrise Auto.) 23 In the second place, the question arises with respect to the possible application of par (c) of reg 170(1) as to the time at which a document posted by pre-paid letter post would, in the ordinary course of post, have arrived at the place to which it was addressed. It appears that the objection decision was posted from the city of Parramatta, New South Wales, to the taxpayer, care of Messrs Hovan and Co's address in Castlereagh Street, Sydney. The letters comprising the objection decision were dated 25 March 1999. If one excludes that date and commences counting the days from 26 March 1999, it appears that that period of 60 days expired on 24 May 1999. As has been noted, these applications were filed on 1 June 1999. 24 Section 160(1) of the Evidence Act 1995 (Cth) provides: "It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by pre paid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted." 25 There is no evidence in the present matter to raise any doubt about this presumption (unless it is in doubt that in the ordinary course a letter posted from Parramatta would be received in the separate business district of Sydney in less time), but I am prepared to assume in the taxpayer's favour that the letters dated 25 March 1999 were not received until the fourth working day after having been posted, and that time began to run on Friday 26 March, and that the four working days expired thereafter. I should also refer in this connection to s 163(1) of the Evidence Act 1995 (Cth), which provides: "A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise purports to be the date on which the letter was prepared." 26 In substance it would follow, in the absence of evidence sufficient to raise a doubt, that the period of four working days mentioned in s 160(1) of the Evidence Act is extended by another working or business day. As I have already said, there is evidence sufficient to raise a doubt about the application of this presumption also in the sense that, in the absence of any evidence to the contrary, I would be prepared to infer that a letter sent from the City of Parramatta to the Central Business District of Sydney by post would, in the ordinary course, arrive in Sydney at its destination in no more than two days. But whether s 163(1) is applied or s 161 is applied or whether the ordinary inference I have mentioned is applied, the ultimate result for present purposes will be the same for the following reason: Whether one commences the calculation of the 60 day period from 26March or from 31 March or 1 April, the result is that the 60 day period expired no later than Monday 31 May, and, as has been seen, the present applications were not filed until the following day, 1 June. 27 It follows, in my opinion, that because of the mandatory jurisdictional requirements of s 4ZZN of the Taxation Administration Act, this Court lacks jurisdiction in the present matters. I am therefore of a view that the Commissioner's motions should succeed; and that the "appeals" should be summarily dismissed. I so order.