Heerey J

Federal Court

Judgment date: Judgment delivered 2 March 1994

Heerey J

The applicant applies under s. 459G of the Corporations Law to set aside a statutory demand which was served on 25 October 1993. It is accepted that the applicant owes the respondent $47,521.20 for group tax and penalties. The liability for the group tax was incurred in the period 14 November 1990 to 15 January 1991. That amount is owed jointly and severally with a company called Beaumark Pty Limited which was engaged in a mining joint venture with the applicant.

Although other grounds were raised in its affidavit in support, before me the applicant relied on only two grounds. It was said that the applicant had a genuine defence because the respondent had agreed to wait until the applicant commenced and completed a legal action in respect of a claim for in excess of $3,000,000 against Petroleum Securities Mining Company Pty Limited (PSMC), and that the respondent was therefore estopped from claiming the debt until either a settlement has been reached or an order obtained.

Secondly, it was said that the amount claimed was also due by the joint venture group employer Beaumark Pty Limited and the respondent had not made a statutory demand upon that company.

As to the first ground, I think the short answer is the evidence presented does not make out an arguable case of such an agreement. There was in the applicant's solicitor's affidavit reference to conversations between a director of the applicant and officers of the Tax Office, and it was said that the applicant wrote to the respondent a letter on 26 September 1991 ``confirming the conversations''. There was also reference to another letter of 17 February 1992 which was said to confirm a similar conversation. It is sufficient to say that those letters, which were sent by the applicant itself, contain no hint of an agreement being reached of the kind now suggested. At best they are providing information of the progress of the claim against PSMC.

As to the second ground, counsel referred to the decision of the House of Lords in
IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 and, in particular, the speech of Lord Scarman at 651 where his Lordship stated:

``But I do not accept that the principle of fairness in dealing with the affairs of taxpayers is a mere matter of desirable policy or moral obligation. Nor do I accept that the duty to collect every part of inland revenue is a duty exclusively to the Crown. Notwithstanding R v Lords Commissioners of the Treasury, I am persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly, to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise to ensure that there are no favourites and no sacrificial victims. The duty has to be considered as one of several arising within the context comprised in the care and management of a tax, every part of which it is their duty, if they can, to collect.''

The reference in that case to a legal duty to treat taxpayers fairly was referred to with approval by Morling and French JJ in
David Jones Finance and Investments Pty Ltd & Anor v FC of T 91 ATC 4315 at 4319.

However, the facts of the House of Lords case are far removed from the present. The complaint was that the revenue authorities had made a deal with unions and employers so that a new arrangement for the collection of income tax from casual employees would be put into effect in return for previous evaded tax not being pursued. The Federation of Self- Employed and Small Businesses complained that this was discriminatory because the tax authorities did not grant such indulgence in pursuing other taxpayers. Ultimately the Federation failed on a locus standi point.

It is a well established principle of parliamentary democracy that executive government has no power to dispense with laws or the execution of laws by its own authority:

ATC 4165

the Bill of Rights 1689, 1 Will & Mar 2, c. 2, s. XII, discussed in
A v Hayden (1984) 156 CLR 532 at 580 and
Churchill Fisheries v Director- General of Conservation [1990] VR 968 at 985-988. However, all that the present case discloses is that the respondent has taken certain legal steps against one taxpayer, but not, at least not yet, against another taxpayer who would be jointly and severally liable for the same tax debt.

Counsel for the respondent proffered from the Bar table certain explanations, to which I do not think I should, or need, advert. All I can say is that the bare fact that at one point in time some proceedings are on foot against one taxpayer, but not against others liable for the same or similar debts, is equally consistent with many possible innocent explanations and is by no means necessarily attributable to some unlawful and discriminatory treatment of taxpayers by the taxation authorities.

In any event, one might think that if A and B both owed tax debts and the authorities, in an unlawful and discriminatory fashion, proceed against A but not B, that circumstance does not afford a defence to A. Rather it may ground a claim for relief in the nature of mandamus requiring the obligation to be enforced against B.

The application will be dismissed with costs.

The Court orders:

1. The application be dismissed.

2. The applicant pay the respondent's costs including reserved costs.

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