Eighth Oupan Pty. Ltd. v. Deputy Federal Commissioner of Taxation.

Judges:
Smithers J
Lockhart J
Keely J

Court:
Full Federal Court

Judgment date: Judgment handed down 6 March 1986.

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Smithers J.

I agree also. I would just like to add generally, that when this case started in January 1985 the document referred to in Mr Gorr's affidavit headed ``Prio Prosecutions'' was not then known to the appellant. At that stage the appellant was making allegations without foundation of any kind. On receiving the document on 1 March, an attempt was made to use it as evidence that the Commissioner, in issuing the notice under sec. 264 in August 1984, did not do so for the purposes of administering the Assessment Act in an endeavour to protect the revenue and ensure that people, who should pay their tax, paid it, but for some personal animus to harass the applicant.

Far from that being so, it seems to me that the matters apparently believed by the Commissioner and set forth in the document ``Prio Prosecutions'' would found a very good basis for the Commissioner's decision that in relation to this particular applicant it was desirable that a full investigation instituted by a notice under sec. 264 should be conducted.

It was, as I understood it, sought to say that it was arguable that the period set forth in the notice for the production of the documents was too short, and that that in itself was some evidence that the Commissioner was acting for the purposes of harassment, and not for the purpose of administering the Assessment Act properly. To my mind it is not arguable that that period is the slightest evidence of harassment, and the best evidence of that is that the Commissioner was responsive to requests

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ATC 4315

made by the appellant between August and January to extend the time for compliance with the notice and that extensions were given from time to time. Accordingly, I agree in the reasons for judgment and the proposed order of Lockhart J.

I would merely add one further observation, namely, that the Commissioner was of the opinion that there was danger of frustration by the applicant of the processes under the Assessment Act designed to enable the Commissioner to obtain the necessary information required for the purposes of administering the Assessment Act properly. It must be said that in this particular case there has been a very substantial frustration in relation to this particular notice which was given in August 1984. That was followed by protestations by the applicant of a desire to comply with the law but that suffered a metamorphosis by the generation of all kinds of reasons as to why the notice should not be complied with, and it has been frustrated, therefore, since August 1984 till March 1986, which is a very substantial frustration.

In the next memorandum concerning ``Prio Prosecutions'' it may not be unlikely that the successful frustration practised by the appellant in relation to this particular notice will be recorded as further evidence to justify opinions similar to those which were expressed in that document.

The order of the Court is that the appeal be dismissed with costs.

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent of the appeal.