COMMISSIONER OF TAXATION v BAFFSKY

The "Second Offence" 105 The proceedings before Backhouse DCJ were convictions for two offences of failing to furnish an income tax return, when required pursuant to a taxation law, contrary to s8C(1)(a) of the Taxation Administration Act 1953. The requirement was to furnish income tax returns for each of two years pursuant to a single notice issued on 4 April 2000 and to do so on the same day. 106 In her judgment her Honour said: "There are indeed two offences in the technical sense, but each failure resulted in an offence and both matters were included in an Information and Summons before the court … ." 107 The Commissioner submitted that it was apparent from her Honour's reasons that she failed to take into account that one of the offences was a "second offence". Presumably the second charge on the Information being the second of the two financial years with respect to which a return was not filed, is the "second offence". It was submitted that her Honour did not exercise her discretion separately with respect to that offence, taking into account the fact that it was a second offence. 108 In my opinion this takes an artificial approach to the hearing before her Honour. Her Honour's reference to the fact that there were two offences "in the technical sense", reflected the fact that they were both committed in the same constellation of circumstances which her Honour found to be relevant for purposes of exercising the discretion under s19B. Each was, in fact, triggered by the Respondent's failure to furnish a return on exactly the same day, i.e. on or about 3 May 2000, as required by a single notice, issued to the Respondent with respect to two separate financial years. In these circumstances it was open to her Honour to consider the two offences together for purposes of exercising the s19B discretion. I would answer Question 4(V): "No".

Conclusion 109 The answers I propose are: 4(I) (a) No; (b) Yes;

4(II) (a) No; (b) Decline to Answer;

4(III) (a) Yes; (b) No; (c) No;

4(V) No. 110 SIMPSON J: I agree with the Chief Justice. 111 EINFELD AJ: I have read the judgment to be delivered by the Chief Justice. I agree with his Honour's analysis and conclusions. I would answer the questions posed in the same way as his Honour. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.