Ex parte Carpathia Tin Mining Company Limited [1924] HCA 66

P. R. Higgins, in support of the application, referred to sec. 33 of the Income Tax Assessment Act 1915-1918; Julius v. Bishop of

Oxford (1). [Ricu J. referred to Pasmore v. Oswaldtwistle Urban District Council (2).] Jud. adv. vit, (1) (1880) 5 App. Cas. 214. (2) (1898) A.C. 387, at p. 394.

Ricn J. delivered the following written judgment : - This is an 4. C. or A. application for an order calling on the Commissioner of Taxation -

• to show cause why a writ of mandamus, or relief of the like nature Ex rarre

_ to mandamus, should not be issued to the Commissioner directing te eat

him to make certain alterations in the assessments of tax served on ©9-: Lt.

q 'the Company for the years 1917-1918 to 1924-1925, inclusive, in order _ Dee. 2. to insure the completeness and accuracy of such assessments. In November 1919 an application was made to the Commissioner

_ allowed a partial deduction but disallowed the main deduction. No _ objection was lodged on behalf of the Company under the provisions _ of sec. 37 of the above Act. The present application is based on the _ provisions of sec. 33 of the Act (now sec. 37 of the Income Tax ssessment Act 1922). The section reads thus : - " (1.) The Commis- sioner may at any time make all such alterations in or additions to

have been paid in respect of income included in the assessment : Provided that every alteration or addition which has the effect of posing any fresh liability, or increasing any existing liability, shall notified to the taxpayer affected, and, unless made with his consent, shall be subject to objection. (2.) When any alteration _ in an assessment has the effect of reducing the taxpayer's liability the Commissioner may refund the taxpayer any tax overpaid :

_ The question is one of great importance in income tax law. Assuming the sums in question to be in the nature of a foregift, in my opinion there is no power in a taxpayer to compel the Commis- er to act under sub-sec. 1 of sec. 33. The Commissioner " may " _at any time make alterations or additions to an assessment, but the i sub-section limits them to " such alterations in or additions to any ent as he thinks necessary in order to insure its completeness

H.C. or A. and accuracy." No one else's opinion on this subject can be 1924.

~ kx parte Opinion, he " may," and therefore, as I think, is bound to, make the

Co.Lrp. discretion prescribed by the two provisoes to the sub-section, but

substituted for that of the Commissioner, but, if he forms that

proper alteration or addition. There are two qualifications on his

Rich J. it is to be noted that there is no other or further power of alteration or addition given by the section than is found in sub-sec. 1 with its provisoes.

When we come to sub-sec. 2 we find, not an additional power of making an alteration or addition in an assessment, but an enactment as to what is to happen in certain cases, assuming an " alteration" (not an addition) has been validly made by virtue of the preceding sub-section. That alteration may have been made by the Commis- sioner either on his own discovery of an error or on an application by the taxpayer. Sub-sec. 2 then provides for what is to follow in certain cases, but there is nothing in sub-sec. 2 which can afford the taxpayer any ground for cutting down the condition in sub-see. 1 contained in the words "as he thinks necessary " &c.

This construction keeps sec. 33 (now sec. 37) in harmony with other sections of the Act regarding assessment and objections - e.g.,

secs. 37, 38 (now secs. 50, 51), where a specific remedy is provided (cf. Pasmore v. Oswaldtwistle Urban District Council (1) ). For these reasons I refuse the application.

Deo. 18. The same application was made to the Full Court (Knox C.J., Isaacs and Starke JJ.).

P. R. Higgins, in support of the application. Per CurtAm. The application will be refused.