F.J. Bloemen Pty. Limited v. Federal Commissioner of Taxation.

Judges: Stephen J
Mason J
Wilson J
Murphy J

Aickin J

Court:
Full High Court

Judgment date: Judgment handed down 5 June 1981.

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Aickin J.

In these matters I have had the advantage of reading the joint reasons for judgment prepared by my brothers Mason and Wilson . I agree with their reasons and conclusions in the case of F.J. Bloemen Pty. Ltd.

That reasoning covers substantially the whole of the appeal by Simons. There remains however the question whether that case can be assimilated to the decision of this Court in
F.C. of T. v. S. Hoffnung & Company Ltd. (1928) 42 C.L.R. 39 . In that case it was held that a purported notice of assessment was a nullity, imposed no liability and did not present a bar to objection to a subsequent ``amended assessment''. The facts are most fully set out in the judgment of Higgins J. at pp. 57-59. In that case the Commissioner at the time of making the ``assessment'' had intimated to the taxpayer that ``this matter remained to be adjusted and that pending such adjustment payment of tax was to remain in abeyance''. Higgins J. said (at pp. 58-59):

``On the question of deduction of the British excess profits duty under the British Finance Act , the substantial question here, it is expressly stated in par. 7 of the admissions that `the assessment originally and as altered up to 13th January 1922 did not include any deduction for excess profits duty paid in the United Kingdom under sub-sec. 4 of sec. 15 of the said Commonwealth Act, the Commissioner intimating when making such assessment that this matter remained to be adjusted and that pending such adjustment payment of tax was to remain in abeyance .' Admissions 8-12 give details of the several alterations in figures; but until the alteration of 18th August 1923 there was nothing to affect the figures by virtue of any payment of any British excess profits duty; and, by the alteration of that date, the words in the form of notice of amended assessment as to the time for objections to that assessment were struck out - showing that the notice was not a definitive notice to the taxpayer, in accordance with the scheme of the Act.

In my opinion, the Commissioner in his so-called assessment as well as in his so-called alterations or amended assessments has adopted a course which is not that permitted by the Act. The Act contemplates an assessment which is definitive, so as to bind the taxpayer subject to the power of the Commissioner to make all such alterations in or additions to any assessment as he thinks necessary (sec. 23). Here, the notice of the original assessment itself (exhibit E), is accompanied by a paper giving details, but headed thus: Tentative - War-time Profits Tax - Assessment. If the notice is `tentative' merely, how can the taxpayer be expected to lodge an objection within thirty days, or be for ever silent (see sec. 28)? The course which the Commissioner has adopted, that of a `tentative' or experimental assessment or alteration of assessment, may be convenient in certain circumstances; but it does not put the taxpayer under an obligation to pay within thirty days after notice of the assessment (secs. 32 and 34), or within thirty days after notice of the amended assessment. In this case, the taxpayer has made payments in fact. But the Act does not forbid an objection after the thirty days under the circumstances; for the so-called amended assessment notified on 20th August 1923 was not definitive, inasmuch as the words of the form prescribed intimating that objections may be lodged within thirty days from the notice were struck out by the Commissioner; so that the first real definitive notice of the mode in which the Commissioner meant to deal with the payments of excess profits duty appears in the notice of 10th July 1925. On this basis, the whole question as to the proper mode of bringing into the accounts their payments for excess profits duty is open to the taxpayer under its objections sent on 20th July 1925.''

See also per Isaacs J. at pp. 54-56, per Starke J. at pp. 63-65, and per Knox C.J., at first instance, at pp. 45-46. In that case it is important to observe that, as well as the fact that the paper accompanying the original assessment described it as tentative, in the notification of the amendment of the assessment made in August 1923 the Commissioner struck out the printed words on the notice which specified the time within which an objection could be lodged.

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ATC 4292

In the present case the notice of assessment had attached to it a paper headed ``Adjustment Sheet'' which has been correctly treated as part of the notice of assessment. It bore the note ``Your assessment will be reviewed upon determination of the objection against your assessment for 30 June 1977.'' That notification conveyed no more than that there was an outstanding objection in respect of the preceding year of income, the determination of which might require an amendment of the assessment notified by the notice of assessment, including the alteration sheet. It does not convey the meaning that the notice or the assessment are tentative or that payment of tax should remain in abeyance. There is in my opinion no warrant for having regarded the assessment as other than ``definitive''. The notification did no more than inform the taxpayer of what its officers no doubt knew, namely that the determination of its objection for the previous year might affect its liability for tax in that year and therefore possibly give rise to a credit prior to the due date for payment of the current assessment. These circumstances fall far short of the situation dealt with in Hoffnung's case . There is in my opinion no basis for regarding the notice of assessment as being other than what it appears on its face to be.

Accordingly I agree that the appeal by Simons should be dismissed.

ORDER

F.J. Bloemen Pty. Ltd. v. F.C. of T.

Applications for special leave to appeal refused with costs.

Appeal dismissed with costs.

Simons v. F.C. of T

Appeal dismissed with costs.