Case J65
Members: AM Donovan ChRK Todd M
LC Voumard M
Tribunal:
No. 2 Board of Review
R.K. Todd: I have read the reasons for decision prepared in this matter by my colleague Mr. Voumard. I agree entirely with his findings of fact, with his stated reasons in
ATC 548
law and with the order proposed. I desire to do no more than add my own emphasis to what he has said in relation to the submission that was put for the taxpayer in relation to the grounds of objection.2. This is not the place in which to embark upon an analysis of all that was said in
Steinberg
v.
F.C. of T.
75 ATC 4221
and in
Gauci
v.
F.C. of T.
75 ATC 4257
. I do however wish to make it plain that I do not think that it would be in any way proper or correct for a Board of Review, by purporting to rely on authorities concerned with the onus of proof in cases involving sec. 26(a) of the
Income Tax Assessment Act,
to conclude that the High Court has overruled the authority of what was said by Sir Owen
Dixon
in
A.L. Campbell
&
Co. Pty. Ltd.
v.
F.C. of T.
(1951) 82 C.L.R. 452
, by
Williams
J. in
H.R.
Lancey Shipping Co. Pty. Ltd.
v.
F.C. of T.
,
(1951) 9 A.T.D. 267
and by
Latham
C.J. and
Rich
and
Starke
JJ. in
Molloy
v.
F.C. of Land Tax
(1938) 59 C.L.R. 608
without having referred to those decisions.
3. There is of course quite another issue that may arise where the matter is before a Court, in which case the tribunal is invested with the powers contained in sec. 199 of the Act, but no further reference to this need be made since the powers of a Board of Review are more limited.
4. What I have said is an expression of what I understand the law to be. It is not for me to express either approbation or disapprobation of that law, but for those who are interested, it would be in order to consider the provisions of sec. 17 of the Taxation Appeals Act 1972 (Vict.) which inter alia substituted sec. 26(1) of the Land Tax Act 1958 as follows:
``(1) Upon any review or appeal under this Act -
- (a) unless the Court the Victorian Taxation Board of Review or the Land Valuation Board of Review otherwise orders, the taxpayer shall be limited to the grounds stated in his objection and the Commissioner shall be limited to the grounds upon which he has disallowed the objection; and
- (b) the burden of proving that the assessment is excessive shall lie upon the taxpayer.''
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