Gould and Anor v. Commissioner of Taxation (Special leave decision)
Court appealed from: Federal Court of Australia (Full Court)
Gould
Russell Associates Ltd
v Commissioner of Taxation
[2017] FCAFC 1
[2017] HCASL 126
[2017] HCASL 127
Date of decision: 11 May 2017
Result: Dismissed
Special leave application results
The High Court dismissed the taxpayers' application for extension of time to seek special leave to appeal the Full Federal Court's decision in the matters of Gould v DCT [2017] HCASL 126 and Russell Associates Ltd v DCT [2017] HCASL 127 .
The issue in this case involved whether the Federal Court had erred in striking out the taxpayers' defence and granting summary judgment in favour of the Commissioner, in circumstances where the taxpayer argued the notice of assessment relied on by the Commissioner was infected by conscious maladministration. The basis of the taxpayer's conscious maladministration argument was an allegation that an officer of the Commissioner deliberately deceived the Cayman Islands Tax Information Authority in a request for information for tax years from 1 July 2010, while actually intending to use that information for earlier years not covered by the treaty. The Full Court found no dishonesty was established on the facts. Only two of the three Judges went further to consider the conscious maladministration argument, and found that conscious maladministration in the making of an assessment is not established where the assessment made is not intentionally incorrect. The taxpayers' special leave application sought to challenge s350-10 of the TAA53 as unconstitutional to the extent that it immunises bad faith or deliberately ultra vires acts from judicial review.
The High Court dismissed the application on the papers, with costs.