Clarke v Commissioner of Taxation

The Court 1 On 13 June 2008 we published reasons for judgment in this matter (Clarke v Commissioner of Taxation [2008] FCAFC 106) but deferred answering questions one and two of the three questions of law referred to the Court until the parties had the opportunity to make further submissions as to the appropriate answers to those questions having regard to our reasons for judgment. The reasons why we adopted this course are amplified in [2] below: 2 After preparation of our earlier reasons we formed the view that Questions 1 and 2 might not be susceptible of simple answers. Question 1, for example, does not identify the amounts to which it applies or the recipients or accounts to which such amounts must have been paid. It may be inferred that the payments in question were payments pursuant to the SBS Act or SSS Act, but the CP Assessment Act contemplated some such amounts being, and some not being, contributed amounts. See s 38. Further, that Act commenced on 20 August 1996 (in the year ended 30 June 1997) so that amounts paid prior to that date were presumably not contributed amounts. It may be that the words "with respect to surchargeable contributions reported …" in some way obviated these apparent problems, but that seems unlikely. Although some contributed amounts were surchargeable contributions, some were not. See s 9 of the CP Assessment Act. Similar comments apply, mutatis mutandis, to Question 2. However, in answering that question, it was also necessary to address s 274 of the Income Tax Assessment Act. Question 2 did not do so. 3 Notwithstanding these problems (which are identified in our earlier reasons) the parties have agreed that Questions 1 and 2 should each be answered "Yes". We adopt that course. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Sundberg and Dowsett.