Shell Co of Australia Ltd v Federal Commissioner of Taxation
(1949) 78 CLR 43923 ALJ 370
9 ATD 21
(Decision by: Webb J)
Between: Shell Co of Australia Ltd
And: Federal Commissioner of Taxation
Judges:
Latham CJ
Rich J
Dixon J
McTiernan J
Webb J
Subject References:
Income tax (Cth)
Judgment date: 4 August 1949
Decision by:
Webb J
We are concerned only with the re-assessment of the further tax. (at p463)
The rebate is based on the Commonwealth rate of tax which in turn is based on the further tax among others. There is no provision for any re-assessment of the rebate, so the further and other taxes on which the rebate is granted must be assessed finally before the rebate. (at p463)
The exception of the rebate made by the words in brackets in s. 159 (3) (a) may be only a recognition of the fact that the rebate is still to be ascertained; but in any event it does not in my opinion warrant the conclusion that Parliament intended that the rebate should be a payment creating a further liability to pay the very tax to relieve against which the rebate was granted. (at p463)
If the commissioner apportioned the rebate and in re-assessing the further tax made no deduction of that part of the rebate apportioned to the further tax, the re-assessment would still be unauthorized, as the rebate is against the taxes in gross. The commissioner needs statutory authority to apportion; it is not to be implied because the Act does not expressly forbid apportionment. (at p463)
The questions in the case should be answered as the Chief Justice proposes. (at p463)