Re Shell'S Self Service Pty Ltd v Deputy Commissioner of Taxation [1989] FCA 51; 98 ALR 165

Re Shell'S Self Service Pty Ltd v Deputy Commissioner of Taxation [1989] FCA 51; 98 ALR 165 - FCA 1989 case summary — Zoe

[18]

"We confirmed we would make the necessary

arrangements to have the moneys paid to your

office by the week commencing 17th January and

notwithstanding your letter of 7th January, we

now enclose the taxpayer's cheque for $124,077.44

in good faith and again request that this amount

be accepted in accordance with the terms set out

in our letter of 21st December. In support of

this request we make the following submissions:

1. No indication was given that head office did

not allow any discretion in this matter and

we were left with the distinct impression

that an extension of the proposal was capable

of being considered by Melbourne and in fact,

this would be done.

2. The objection for 1978 has now been allowed

in full which supports the taxpayer's

contention that the objection against the

disallowance of prior year losses has merit

and should be resolved in the taxpayer's

favour.

3. The taxpayer has been fully co-operative in

providing any information requested promptly

and has gone out of his way to ensure that no

delays occur in resolving this matter.

4. The delays in bringing this matter to the

Court for hearing are not the fault of the

taxpayer. We understand that all the papers

regarding this matter have been to Canberra

on more than one occasion and that delays in

having this matter listed are within your

department.

5. The taxpayer is anxious to have this matter

resolved as soon as possible and we should be

pleased to receive any suggestions as to how

we may assist to have the matter listed for

hearing at the earliest possible date.

6. The taxpayer was given the impression that

provided he agreed to a certain course of

action insofar as arrangements to pay part of

the tax (which he has now done) consideration

would be given to remitting the late payment

penalties on the balance (which has not been

done).

We trust in light of the facts you will accept

this cheque pursuant to the terms of our letter

of 21st December. We look forward to receiving

your favourable ruling in this matter."

[40]

"6. My reasons for the decision to remit only

part of the additional tax for late payment are

as follows:

(a) In deciding to remit the amount (viz

$32,754.09) which accrued after the

13th day of January 1983, I took into

account the facts that even though in

the conversation which took place on

the 21st day of December 1982 the

Applicant was not advised that its

proposal to pay 50% of the primary tax

by mid-January 1983 would result in

additional tax ceasing to accrue on the

balance outstanding, until resolution

of the matters in dispute; the

Applicant was not advised, on the other

hand, that a failure to pay by the 27th

day of December 1982 would result in

the taxpayer losing the opportunity to

enter into an arrangement to pay 50% of

the tax in dispute and in return

additional tax would cease to accrue on

the balance oustanding, until

resolution of the matter in dispute.

(b) In deciding not to remit the amount

(viz $45,241.49) which accrued prior to

the 13th day of January 1983, I took

into account the facts that:

(i) The Applicant did not avail

himself of several written

offers made to him to pay 50% of

the tax outstanding on the

condition that additional tax

for late payment would cease to

accrue on the balance out

standing;

(ii) It was never represented or

intended that these offers were

to have any effect on the

accrual of additional tax for

late payment which had accrued

prior to the Applicant accepting

the offer and making the part

payment. In that regard, I crave

leave to refer to the letter of

5 June 1981 (to the) Applicant

and the letter of 21 December

1982 from the Applicant being

part of Exhibits CJR A1(b) and

(c).

(iii) The question of whether the

additional tax could not be

recovered as a matter of law was

not a valid matter to be taken

into consideration in

determining whether remission

pursuant to section 207(1A)

should be granted.

(iv) In as much as the request was

based upon a claim that an

officer was negligent in failing

to explain the full implications

of the amended legislation, I

did not consider that the

officer had failed to explain

the full implications or other

wise been negligent and I did

not consider the officer's

conduct did or could estop the

Respondent from administering

the Act in accordance with its

terms.

(v) The Commissioner is not fully

satisfied as to any of the

matters of which he must be

satisfied before he is permitted

to remit the additional tax in

full (section 207(1A)).

(vi) The Applicant offered us (no)

grounds which would justify

remission of that part of the

additional tax which had accrued

up to 13 January 1983."

[42]

"1. The decision involved the improper exercise

of the powers conferred by the Income Tax

Assessment Act (1936) (as amended) ("the

Act") and section 15 of the Income Tax

Assessment Amendment Act (No. 6) 1982 ("the

amending Act").

PARTICULARS

(a) The decision-maker erroneously exercised

his discretion in making the decision

pursuant to s.207(1A) of the Act.

(b) The decision-maker erroneously failed to

make the decision pursuant to s.15 of

the amending Act.

(c) The decision-maker took into account

(inter alia) the following irrelevant

considerations:-

(i) that the Applicant did not avail

himself of several written offers

made to him to pay 50% of the tax

outstanding;

(ii) that the sum of $124,077.44 was

not paid before 27th December

(d) The decision-maker wrongly considered

that the only ground given by the

Applicant as to why remission should be

granted in respect of the additional tax

which had accrued pursuant to s.207 of

the Act up to 13th January 1983 was that

such additional tax could not be

recovered as a matter of law and failed

to take into account the matters set out

in the Application for Review No. VG 318

of 1986 and the supporting affidavits.

(e) The decision-maker wrongly considered

that the fact that additional tax could

not be recovered as a matter of law was

not a valid matter to take into

consideration.

(f) The Applicant refers to and repeats the

particulars subjoined to paragraphs 1

and 2 of the Application.

(g) The decision-maker failed to take into

account the fact that on 21st December

1982 the Respondent advised the

Applicant that discretions which would

be exercised prior to 27th December 1982

would not be exercised after that date.

(h) In taking into account that the sum of

$124,077.44 was not paid before 27th

December 1982 the decision-maker

exercised a discretionary power in

accordance with a rule of policy without

regard to the merits of the case.

2. The decision was not authorised by the

enactment, namely s.207(1A) of the Act,

pursuant to which it was purported to be

made.

3. The decision involved an error of law namely

that it was erroneously made pursuant to

s.207(1A) of the Act."

At a glance

Court

Decision date

Source

Judgment (58 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (5)

Re Shell'S Self Service Pty Ltd v Deputy Commissioner of Taxation [1989] FCA 51; 98 ALR 165 (8 March 1989)