R v The Deputy FCT; Ex parte Hooper
(1926) 37 CLR 368[1926] 32 ALR 101
(1926) R and McG 70
BC2600033
(Judgment by: Knox CJ.)
The King
v The Deputy FCT; Ex parte Hooper
Judges:
Knox CJIsaacs J
Rich J
Judgment date: 22 March 1926
Judgment by:
Knox CJ.
This is an application to make absolute an order nisi for a writ of mandamus directed to the Deputy Federal Commissioner of Taxation commanding him to treat as an appeal an objection in writing dated the 27th March, 1925, lodged with him by Naomi Hooper against an amended assessment of Federal income tax. The relevant facts are as follow: On the 4th December, 1924, Mrs Hooper received notice of assessment requiring her to pay £898 11s. 2d. as Federal income tax in respect of income alleged to have been received by her during the year ending 30th June, 1923. An objection to this assessment was duly lodged with the Commissioner, and on the 5th February, 1925, the taxpayer was informed that her objection had not been allowed, and that if she desired to have the objection treated as an appeal she must within thirty days request the Commissioner so to treat it. The thirty days would expire on the 7th March, 1925. On the 6th March, 1925, notice was served on the taxpayer that the assessment made in December, 1924, had been amended by allowing certain deductions not covered by the objection which had been lodged, but subsequently brought to the notice of the Commissioner. The effect of the amendment was to reduce the amount of tax payable to £833 10s. 11d. Printed on the back of this notice was an intimation that an objection might be lodged within forty-two days, and that if the taxpayer should be dissatisfied with the decision of the Commissioner on such objection he might within thirty days after notice of the decision request that his objection should be heard as an appeal. It is said on behalf of the Commissioner that it was by inadvertence that this intimation was not struck out or cancelled on the notice sent to the taxpayer. On the 27th March, 1925, the taxpayer lodged an objection to the amended assessment, and on the 1st April she was informed that the Commissioner could not accept the objection, his view being that an amended assessment could only be objected to when the alteration had the effect of imposing a fresh liability or increasing an existing liability. Further correspondence followed, in which the Commissioner maintained the attitude which he had taken up, and eventually the taxpayer applied for and obtained the order nisi which she now seeks to have made absolute.
The question at issue depends on the meaning to be given to s 50 of the "Income Tax Assessment Act 1922-1924." That section provides, by subs (1), that a taxpayer who is dissatisfied with the assessment made by the Commissioner under the Act may, within forty-two days after service of notice of the assessment lodge an objection in writing.
The question for decision is whether the amended assessment of which notice was given on the 6th March is an "assessment" within the meaning of this section. If the section had to be construed apart from and independently of the other provisions of the Act, I should feel some difficulty in agreeing with the view put forward by the Commissioner. But, having regard to the provision of s 37 of the Act, I think it is reasonably clear that the right to lodge an objection to a so-called "amended assessment" exists only in cases in which the effect of the alteration is to impose a fresh liability on or increase an existing liability of the taxpayer. That being so, it follows that the order nisi must, in my opinion, be discharged; but as it appears probable that the taxpayer may have been misled by the notice given by the Commissioner, I think no order should be made as to costs.