Snow v. Keating (Deputy Commissioner of Taxation (W.A.)).

Judges:
Burt CJ

Court:
Supreme Court of Western Australia

Judgment date: Judgment handed down 18 April 1978.

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Burt C.J.: The appellant was charged in the Court of Petty Sessions, Perth, upon a complaint that ``on the 21st day of July 1977'' he ``failed to comply with a requirement of the Deputy Commissioner of Taxation contrary to the provisions of sec. 224 of the Income Tax Assessment Act 1936, as amended''.

``PARTICULARS: The said Deputy Commissioner by Notice dated the 19th day of July 1977 required the said Peter John Ridsdale Snow to attend at the Income Tax Investigation Branch, 13th Floor of the Office of the said Deputy Commissioner at 1 St. George's Terrace, Perth at 9.00 a.m. on Thursday 21st day of July, and to give evidence before Mr. Rodney Wayne Todman, an Officer employed in the Australian Taxation Office, duly authorised by the Commissioner in that behalf.''

The notice which is referred to in that complaint, addressed to the appellant at 44 Ventnor Avenue, West Perth, is in these terms:

``FINAL NOTICE

INCOME TAX ASSESSMENT ACT, 1936 - AS AMENDED

TAKE NOTICE THAT in the exercise of the powers and functions conferred upon me by delegation from the Commissioner of Taxation under the Income Tax Assessment Act 1936 - As Amended, and pursuant to the provisions of sec. 264 of that Act and for the purpose of enquiring into or ascertaining liability under any of the provisions of that Act, I do by this notice require you to appear personally at the Income Tax Investigation Branch, 13th Floor, 1 St. George's Terrace, Perth at 9.00 a.m. on Thursday 21 July 1977 and give evidence before Mr. R.W. Todman an officer employed in the Australian Taxation Office, who is hereby authorised by me in that behalf.

AND TAKE FURTHER NOTICE THAT should you refuse or neglect duly to comply with this notice, you will be guilty of an offence under sec. 224 of the Income Tax Assessment Act 1936 - As Amended, and be liable to a penalty of not less than Four Dollars nor more than Two Hundred Dollars and legal proceedings will be instituted against you for your refusal or neglect duly to comply with this notice.''

The appellant was convicted on the charge. He was fined $20 with $50 costs and pursuant to sec. 225 of the Act he was ordered ``to attend as required in complaint at 2.15 p.m. on the 30th July 1977''.

The appellant appeals from that decision by an order nisi to review which was granted upon a number of grounds but it is in my opinion only necessary to consider one of them it being that the notice was beyond power in that it did not ``specify... the person whose income or the assessment in respect to which evidence is sought''.

To clear the way for the discussion of that ground it should be said that counsel for the respondent conceded that the words ``when required'' appearing in sec. 224, for the purposes of this case, meant when required in the valid exercise of the power given to the Commissioner by sec. 264 of the Act and hence it was conceded that if the notice given to the appellant was beyond the power conferred upon the Commissioner by that section the conviction of the appellant could not be sustained. It was also acknowledged that the use in the complaint of the word ``failed'' which would be appropriate if the complaint had been made under sec. 223 of the Act was a slip. The complaint laid as it was under sec. 224 ought to have charged that the appellant had ``refused'' or ``neglected'' although counsel would not finally commit himself to the verb which in the instant case would have been appropriate. As the conviction is to be set aside it is not necessary to consider that aspect of the matter any further.

The decision upon the ground now under consideration depends entirely upon the proper construction to be placed upon sec. 264 of the Act which is in these terms:

``(1) The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority -

• (a) to furnish him with such information as he may require; and
• (b) to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.

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  ATC 4127

(2) The Commissioner may require the information or evidence to be given on oath and either verbally or in writing, and for that purpose he or the officers so authorized by him may administer an oath.

(3) The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend.''

As it arises upon the wording of that section and specifically upon the wording of sub-sec. (1)(b) of it, the question simply is whether the Commissioner has been given a general power to be exercised by notice in writing to require a person, in the terms of the notice given in this case, to appear ``and give evidence'' or whether the power so granted is restricted in that its proper exercise requires that the notice in writing should identify the income or assessment of a specific person as being the subject matter upon which the evidence to be given is to be ``concerned''.

Once the question is formulated in that way the answer to it would appear to be self evident. The power which is given can only be exercised by ``notice in writing'' and to be within para. (b) of sub-sec. (1) the Commissioner has been granted the power in that way to ``require any person... to attend and give evidence... concerning his or any other person's income or assessment''. Those words are words of limitation upon the power which is given and more particularly upon the means whereby the power which is given can be exercised. A notice requiring a person to appear and give evidence without identifying a subject matter within the sub-section with which the evidence to be given is to be concerned is not a notice within the sub-section; the notice given in the instant case which beyond stating that it is given ``for the purpose of enquiring into or ascertaining liability under any of the provisions of'' the Act is completely at large is not such a notice. Although the precise question upon which this appeal turns seems not to have arisen in either of the two
Smorgon cases, 76 ATC 4364, (1976) 13 A.L.R. 481, and 77 ATC 4522, (1978) 16 A.L.R. 721 - the answer which I have given to it appears to me to be consistent with the reasoning of Stephen J. in each of them. For this reason the order nisi should be made absolute and the appeal should be allowed. The conviction is quashed and the other orders made set aside. The respondent will pay the appellant's costs of the appeal to be taxed.