Hart v. Commissioner of Taxation (Special leave decision)
Court appealed from: Federal Court of Australia (Full Court)
v. Commissioner of Taxation
 FCAFC 61
2018 ATC 20-653
Date of decision: 12 September 2018
Result: The application for special leave to appeal should be dismissed
The High Court refused the taxpayer's application for special leave to appeal the Full Federal Court's decision in Hart v Commissioner of Taxation  FCAFC 61.
The issue in this case involved a Part IVA assessment against the taxpayer in respect of income from his law firm, which was distributed to him by a discretionary trust through a New Venture Income Scheme to avoid tax. Penalties were imposed pursuant to s 226 of the ITAA36 at the rate of 50%. Justice Bromwich's decision at first instance found that there was no reasonable argument that Part IVA did not apply, and no proper basis to remit the penalties imposed.
The Full Court found that Justice Bromwich's decision at first instance disclosed no discernible error. They found that even had Mr Hart been able to show the Commissioner's counterfactual was unreasonable (which on the evidence he did not), this would have been insufficient to discharge his onus, as he did not sufficiently identify and evidence his own counterfactual.
Special leave application results
1. This application for special leave to appeal from the decision of the Full Court of the Federal Court of Australia (Robertson, Wigney and Steward JJ) would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal. The application should be dismissed.
2. Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.