FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v McGrouther [2015] FCAFC 34

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed 28 October 2014 be granted and the draft notice of appeal being document 6 in Part A of the appeal book be taken as filed.

2.    The appeal be allowed.

3.    The orders of the Court made on 14 October 2014 be set aside and in lieu thereof, it be ordered that the proceedings be struck out for want of jurisdiction as an appeal under section 14ZZ of the Taxation Administration Act 1953 (Cth).

4.    The respondents pay the appellant's costs of the application for leave to appeal, of the appeal and in the Court below.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons of Pagone J and Davies J. I agree with them and with the orders proposed therein. In deference to the primary judge’s careful reasons and to the change in focus of the argument of the applicant before this Court, I would prefer to express the essence of my reasons in my own words.

2    Section 14ZYA of the Taxation Administration Act 1953 (Cth) (“TAA”) provides a form of statutory benefit or advantage to the taxpayer. It is unnecessary to be too particular about the legal character of that benefit or advantage. Its practical content and operation are real: the Commissioner has a legal duty to deal with an objection to an assessment: TAA, s 14ZY. The TAA does not prescribe a time for the performance of that task, after due consideration. It lies within the hands of the taxpayer to bring about a decision on the objection by the giving of a notice under s 14ZYA(2). In its statutory context, s 14ZYA provides a benefit or advantage to the taxpayer by the bringing forward to a point 60 days hence (if not before) when a decision will be taken to have been made (or will have been made) by the Commissioner on the objection. Review of the disallowance by the Court or the Administrative Appeals Tribunal will then be available. An indeterminate time for decision-making has been shortened and crystallised into a nominated time frame, to the general benefit and advantage of the taxpayer.

3    The evident purpose of the provision to be taken from its terms, as well as from the history of its enactment (referred to by the primary judge) is to give some control to, and protection of, the taxpayer in connection with the length of time for bureaucratic decision-making in relation to the taxpayer’s objection. In a very general sense, it is a provision in aid of efficient and timely decision-making; but this is achieved by the placing in the hands of the taxpayer the power to bring about a decision in respect of the objection. The furtherance of the public interest in good and timely administration is brought about by the granting of a form of power to the taxpayer to bring about a decision on the objection.

4    Whilst s 14ZYA(3) is clear, the words of that subsection, and the section as a whole, should be read in the context of accepted maxims or canons of construction of statutes. One such maxim (quilibet potest renunciare juri pro se introducto) is that “[a]ny one may, at [her or] his pleasure, renounce the benefit of a stipulation or other right introduced entirely in [her or] his own favour”: Broom H, A Selection of Legal Maxims (10th ed, Sweet & Maxwell Ltd, 1939) p. 477.

5    The form and context in which the maxim operates are various. They include the proposition that everyone may renounce a benefit or waive a privilege which the law has conferred on her or him: Rumsey v North-Eastern Railway Company (1863) 14 C B (N S) 641 at 649; 143 ER 596 at 600 per Erle CJ. See also Brown v The Queen (1986) 160 CLR 171 at 178 and the cases there cited.

6    The question is ultimately one of statutory construction and interpretation: Is the taxpayer, once having given a notice under s 14ZYA(2) entitled to renounce the consequences of s 14ZYA(3) by purporting to withdraw and abjure the notice (here with the agreement of the Commissioner)? Of course, the act in the world of the giving of the notice can never be undone, physically. Once sent out, a word takes wing irrevocably: Horace Epistles I xviii.71: Oxford Dictionary of Quotations (3rd ed, Oxford University Press, 1980) p. 258. But the question here is whether the legal consequences of the act are ineluctable. They are not if a legal principle allows the party for whose benefit the provision is enacted to retract its effect by renouncing the benefit to be created by it, before the operation of the statute and the statutory consequence of s 14ZYA(3).

7    As a matter of statutory interpretation, this result requires the operation of s 14ZYA(3) to assume a valid notice that has not been renounced or withdrawn by the taxpayer. That construction is achieved by reading the words of the statute against the maxim or canon of construction to which I have referred.

8    I do not see any inconvenience or difficulty in this position. To the contrary, there may be inconvenience in the denial to the taxpayer (for whose benefit the provision stands) of the flexibility that withdrawal might give – especially if the utilisation of the notice provokes activity from the Commissioner that leads to discussion and compromise, salutary consequences that the construction of s 14ZYA(3) promoted by the respondents may impede.

9    The provision should not only be read against the background of the maxim or canon of construction to which I have referred, but also against an assumed desired framework of flexibility, and not stiffness, of machinery provisions concerned with the regulation of the bureaucratic decision-making process.

10    The maxim or canon of construction to which I have referred will not apply if the provision is not only for the individual benefit of the taxpayer, but is also for a wider public purpose. Such may occur in a number of circumstances where it can be seen that holding the party to the statutory provision sought to be renounced has a public interest or policy to it. See for example Davies v Davies (1919) 26 CLR 348 at 356; Equitable Life Assurance Society of the United States v Reed [1914] AC 587 at 595; and Brown v The Queen at 208-209.

11    Here, there is no public policy in the ineluctable operation of s 14ZYA against the wishes of the taxpayer (here with the Commissioner in agreement at the relevant time). The public policy of encouraging efficient administration is fulfilled by the granting of the power to the taxpayer to call for a decision within 60 days. That public policy is not undermined by permitting the taxpayer to renounce the consequences of the step he, she, or it has taken.

Associate:

Dated: 16 March 2015    

REASONS FOR JUDGMENT

PAGONE AND DAVIES JJ:

INTRODUCTION

12    A taxpayer who is dissatisfied with a “taxation decision” made by the Commissioner of Taxation (“the Commissioner”) may object against that decision in the manner prescribed in Part IVC, Division 3 of the Taxation Administration Act 1953 (Cth) (“TAA”): s 14ZL of the TAA. If an objection is lodged within the prescribed time, the Commissioner “must decide” whether to allow the taxation objection in whole or in part or to disallow it (“the objection decision”): s 14ZY(1) of the TAA. If the taxation objection is disallowed, the adverse objection decision can be challenged by the taxpayer in the Administrative Appeals Tribunal (“AAT”) or the Federal Court: s 14ZZ of the TAA. Section 14ZY does not set any time limit by which the Commissioner must make an objection decision. However, s 14ZY(2) provides that if no decision has been made after 60 days from the lodgement of the objection, the taxpayer may give the Commissioner a written notice requiring the Commissioner to make an objection decision. Section 14ZYA(3) provides that if the Commissioner has not made an objection decision by the end of the period of 60 days after being given the notice, then, at the end of that period, the Commissioner “is taken to have made a decision under sub-section 14ZY(1) to disallow the taxation objection.

13    In the present case, the respondents gave the Commissioner written notices (“the notices”) requiring him to make an objection decision on their objections. The notices were given two days after the Commissioner had served the first respondent with a notice under s 264 of the Income Tax Assessment Act 1936 (Cth) (“the ITAA”) requiring him to attend an examination to assist the Commissioner in making a decision on the objections. The respondents “withdrew” their notices before the end of the 60 day period referred to in s 14ZYA(3) as a condition of the Commissioner agreeing to adjourn the examination of the first respondent until after the hearing and determination of judicial review proceedings in which the first respondent was seeking orders to prevent the Commissioner from conducting the s 264 examination.

14    Notwithstanding that they had withdrawn their notices, when the 60 day period referred to in s 14ZYA(3) expired, the respondents commenced an appeal under Part IVC of the TAA against the disallowance of their objections. The Commissioner applied to have the respondents’ Part IVC appeal struck out or dismissed on the basis that there was no objection decision against which a Part IVC appeal could be made. The respondents contended that once an election has been made by a taxpayer to give a notice given under s 14ZYA(2), the notice cannot be withdrawn by the taxpayer and, accordingly, that their objections were deemed to have been disallowed by operation of s 14ZYA(3). The Court below accepted the respondents’ argument that it is not possible for a taxpayer to withdraw a s 14ZYA(2) notice, once given, and dismissed the Commissioner’s application.

15    The Commissioner has applied for leave to appeal that decision. The leave application was heard on the basis that it is to be treated as the hearing of the appeal, if the Commissioner is granted leave to appeal. For the reasons that follow, leave to appeal should be granted and the appeal allowed.

THE DECISION BELOW

16    In the Court below, the Commissioner advanced the contention that a taxpayer has an implied power, or right, to withdraw or revoke, a s 14ZYA(2) notice. The primary judge rejected that contention for four reasons.

17    First, the primary judge reasoned that a notice under s 14ZY does not require the Commissioner to do anything, but simply “starts the clock ticking” so that there is no utility in implying such a right. The primary judge said at [35]-[36]:

In deciding whether a person has an implied power, or right, to withdraw, or revoke, a s 14ZYA notice previously given, it is necessary to properly appreciate what it is that service of a s 14ZYA notice on the Commissioner does: it does nothing other than “starts the clock ticking” by which the Commissioner is to make his objection decision, failing which, on the sixtieth day after the giving of the notice he is deemed by the statute to have disallowed the objection. Contrary to the Commissioner’s written submissions at para 22 it does not provide “a process by which a taxpayer can require the Commissioner to make a decision on the taxpayer’s objection”. That requirement exists, in the form of a duty through s 14ZY of the TAA, from the time the taxpayer lodges his objection. Section 14ZYA does not add to that requirement. Indeed, a s 14ZYA notice does not require the Commissioner to do anything. If, after having been served with a s 14ZYA notice, the Commissioner does nothing, a position he may well take, even if it is in breach of his statutory duty, then after a period of 60 days from service of the s 14ZYA notice, he is deemed to have disallowed the objection.

So understood, the giving of a s 14ZYA notice does not have the consequences that the giving of other notices have, such as a notice of objection to an assessment, or a notice by way of application for a permit or licence to do something. A s 14ZYA notice does not require the Commissioner to do anything; it merely starts time running so that if the Commissioner does not perform his duty to decide the objection within a certain time, on the expiration of that time, the objection is deemed to be disallowed.

The primary judge distinguished the cases on which the Commissioner relied where such a power or right has been implied, reasoning that they were all cases where, on the withdrawal of an application, the relevant authority was relieved from any duty or obligation imposed by statute to deal with the application. The primary judge observed at [41]-[42]:

… all these cases involved the giving of notices or the making of applications where the body or entity served with the notice or application had to consider, address and decide something which they otherwise did not have to consider, address and decide. Consequently, there was utility in implying a power or right of withdrawal on the part of the person or applicant giving or making the notice or application if they no longer wanted the body or entity served with the notice or application to consider, address and decide it; the exercise of that implied power or right would relieve that body or entity from the obligation or duty imposed by the statute.

That is not this case. The exercise of any implied power or right of withdrawal or revocation by the giver of a s 14ZYA notice would not relieve the Commissioner of anything; he would remain under the duty to decide the notice of objection in accordance with s 14ZY. All that would occur is that the running of time under s 14ZYA(3) would cease, at least until a new s 14ZY notice was given.

18    Secondly, the primary judge rejected the Commissioner’s contention that s 14ZYA should be interpreted beneficially to include the implication of a right to revoke a s 14ZYA notice (before the deeming effect of s 14ZYA(3)). The Commissioner had argued that “otherwise” a taxpayer could suffer prejudice if the taxpayer was bound by a notice that could not be withdrawn and submitted, by way of example, that it may limit the opportunity for a taxpayer to settle with, or provide further information to, the Commissioner. The primary judge was not persuaded by this argument, stating that neither the opportunity for settlement nor the opportunity to provide further information to the Commissioner would be limited or inhibited by the absence of an implied power or right of withdrawal or revocation of a s 14ZYA notice.

19    Thirdly, the primary judge reasoned at [46] that the implication of a right to withdraw a s 14ZYA notice would carry with it the right to give successive s 14ZYA notices in respect of the same objection (provided the preceding s 1ZYA notice had been withdrawn) which, in the primary judge’s view:

… would not be consistent with the policy and purpose of s 14ZYA, namely, of providing a non-curial mechanism for a taxpayer to expedite the objection process and bring it to an end, so that the taxpayer is free, but only if the taxpayer wishes, to appeal to this Court or refer the objection decision to the Administrative Appeals Tribunal. Not only is it inconsistent with the policy and purpose of s 14ZYA, but the wording of s 14ZYA gives no indication that the option of expediting the objection process is exercisable on more than one occasion in relation to the same objection.

20    Fourthly, the primary judge reasoned at [48] that:

… if taxpayers are permitted to serve and then withdraw s 14ZYA notices at will the effect is to create administrative inconvenience in public administration by forcing the allocation of resources to objections that ultimately do not need to be satisfied within 60 days. A power of revocation destroys the very certainty s 14ZYA otherwise creates.

21    The primary judge also referred to McLaren v Deputy Commissioner for Taxation (2001) 46 ATR 421; [2001] FCA 311. In that case, application was made for an interlocutory injunction restraining the Commissioner from conducting a s 264 examination pending the resolution of judicial review proceedings challenging the validity of the s 264 notice. In considering the balance of convenience, Gray J took into account that the applicants had given s 14ZYA notices and that the period of 60 days was running. At [14] Gray J concluded:

I am therefore left with the choice of effectively ending any opportunity the Commissioner might have to ask questions of the first applicant or allowing the interview to proceed. I considered at one point the possibility of granting an injunction but making it conditional upon the withdrawal of the notice under s 14ZYA and the non-delivery of a further similar notice. I am by no means certain that it is possible for a taxpayer who has given a notice under s 14ZYA to withdraw it and thereby to prevent the 60 day period from running. My concern would be that a withdrawal could be regarded as ineffective and that therefore the result that would flow from the s 14ZYA notice would flow in any event. In my view that would be extremely undesirable.

[Emphasis added by the primary judge.]

In the primary judge’s view, Gray J’s uncertainty as to whether it is possible for a taxpayer who has given a notice under s 14ZYA to withdraw it and thereby to prevent the 60 day period from running was totally justified.

consideration

22    The Commissioner argued differently before this Court on his application for leave by basing his contention that a taxpayer can withdraw a s 14ZYA notice on the canon of statutory construction that statutory rights that are not jurisdictional are capable of waiver, unless the provision was enacted for some public interest wider than that of the private parties. The Commissioner argued that the principle applies to the construction of s 14ZY because the section confers statutory rights of a kind on a taxpayer that are not jurisdictional and do not have a wider public interest purpose, but which are personal to the taxpayer exercising them: namely, the right to require the Commissioner to make an objection decision on the taxpayer’s objection within 60 days from the giving of the notice and the right to a deemed objection decision under s 14ZYA(3) in the event that no objection decision is made within that time. It was submitted that those rights, being for the sole benefit of the taxpayer, may be waived by the taxpayer and, specifically, that the deeming operation of s 14ZYA(3) is able to be waived by a taxpayer withdrawing a notice that the taxpayer has given under s 14ZYA(2).

23    The principle to which the Commissioner referred - expressed in the maxim quilibet potest renunciare juri pro se introducto (any person can waive a statutory provision that is entirely for his or her own benefit) – is well supported by authority: Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 406-7, 496-7; Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427 at 435; Clarkson v Commissioner of Corrective Services (NSW) [2007] NSWCA 58 at [25]-[26]; Jones O (ed), Bennion on Statutory Interpretation (6th ed, LexisNexis Butterworths, 2013) pp. 29-33; Pearce DC and Geddes RS (eds), Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths, 2011) pp. 365-6. In Verwayen Brennan J explained the principle as follows at 424:

The general principle was stated by Alderson B. in Graham v. Ingleby (1848) 1 Ex. 651, at p 657:

“[I]t is evident that a party who has a benefit given him by statute, may waive it if he thinks fit. There are many cases in which no action can be commenced except after certain notice of action. That is a requirement by statute; but if a plaintiff went to trial, and the defendant did not then object to the want of notice, could he afterwards set aside the whole proceedings because no notice was given? It is clear that he could not.”

In Wilson v. McIntosh [1894] AC 129, a caveat had been lodged against an application to bring land under the Real Property Act 1862 (N.S.W.) (26 Vict. No. 9) and, the time limited for the caveator to take proceedings to establish her title having passed, the caveat lapsed and the applicant was entitled to have the caveat removed. But the applicant proceeded to state his case and secured an order that the caveator should state her case, which she did. The applicant, having neglected to take any steps to set the matter down for hearing, applied to have the caveat removed on the ground that it had expired. The Privy Council ordered that the motion for removal be refused. Davey L.J. said (at p. 133):

“Their Lordships are of opinion that the maxim ‘Quilibet potest renunciare juri pro se introducto’ applies to this case, that it was competent for the applicant to waive the limit of the three months and the lapse of the caveat by sect. 23, and that the respondent did waive it by stating a case and applying for and obtaining an order upon the appellant to state her case, both which steps assumed and proceeded on the assumption of the continued existence of the caveat.”

The maxim quoted by Davey L.J. is translated in Broom’s Legal Maxims, 10th ed. (1939), p 477, as follows:

“Any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour.”

As the cases show, rights conferred by a statutory provision are capable of waiver unless the provision is one that is enacted for the benefit of the public or where the observance of the provision is a condition precedent to the exercise of a statutory power.

24    The respondents contended that the principle does not apply here because s 14ZYA has a wider public purpose than conferring a right on a taxpayer to “require” the Commissioner to make an objection decision within the time limit imposed by the section. It was contended that the provision “also reflects a legislative judgment about the amount of time that should properly be spent on any one taxpayer objection” and “is much about good public administration as it is about benefiting taxpayers”. It was further contended that s 14ZYA does not confer the rights identified by the Commissioner in that s 14ZYA(3) contemplates that an objection will not necessarily be determined within 60 days of service of a s 14ZYA(2) notice, and that the only right available for a taxpayer to waive after the giving of s 14ZYA(2) notice is the right to commence Part IVC proceedings in the Court or the AAT. It was also contended that any right to waive the consequences of a s 14ZYA(2) notice is excluded by s 14ZYA(3) which is expressed in mandatory terms and the consequences of a statutory election cannot be waived after the election has been made. We disagree.

25    Section 14ZYA, by its express terms, confers on taxpayers the statutory rights that are identified by the Commissioner: (1) the right to give a notice (s 14ZYA(2); and (2) the right to a deemed objection decision on the taxpayer’s objection by the operation of s 14ZYA(3). The statutory context of s 14ZYA makes it clear that these rights are personal to the taxpayer exercising them and do not have some wider public purpose. Under the scheme of the legislation, no fixed time limit is imposed on the Commissioner within which to make the objection decision, but if no objection decision has been made by the expiry of the time periods in s 14ZYA(1), a taxpayer, at the taxpayer’s election, may, in effect, impose a deadline for the determination of that taxpayer’s objection by giving a notice under s 14ZYA(2). The Commissioner is not obliged to decide the taxpayer’s objection within 60 days after a notice is given, but if an objection decision is not made within that time the taxpayer can rely on the deeming provision in s 14ZYA(3) to exercise the right to apply for review or to appeal under s 14ZZ of the TAA. In these circumstances, it is undoubted that the rights conferred by s 14ZYA, and the statutory consequences that flow, exist solely for the personal benefit of the taxpayer exercising them, and notions of good public administration and timely objection decisions do not turn the provision into a provision with a wider public interest. The power conferred upon a taxpayer by s 14ZYA(2) to give the Commissioner a notice is purely permissive and entirely at the discretion of the taxpayer. The power is conferred upon the taxpayer purely for the taxpayer’s benefit in any individual case and may be exercised or not at will. A notice given under s 14ZYA(2) is not a notice that in 60 days’ time the Commissioner will be deemed to have disallowed an objection decision, but rather is a notice “requiring the Commissioner to make an objection decision”. The primary purpose of s 14ZYA, and the primary object of a notice being given, is to progress the Commissioner’s decision-making function. That is a benefit which exists only for the taxpayer able to give a notice. As a matter of construction, moreover, there is nothing within the terms of s 14ZYA that would prevent a taxpayer from subsequently withdrawing a notice, given at the taxpayer’s election, thereby waiving or abandoning the right to a deemed objection decision on the taxpayer’s objection, as the deeming provision in s 14ZYA(3) only operates where a taxpayer elects to give a notice requiring the Commissioner to make a decision on the taxpayer’s objection. The giving of a notice under s 14ZY(2) is a prerequisite to the operation of s 14ZYA(3).

26    It follows that the answer to whether a taxpayer can withdraw a s 14ZYA(2) notice lies in the application of the principle referred to in Verwayen that a person who has the sole benefit of a statutory provision can waive that provision (within the limitations of that principle). The application of that principle means that a taxpayer’s right to a deemed objection decision by the operation of s 14ZYA(3) is capable of waiver. In Clarkson v Commissioner of Corrective Services [2007] NSWCA 58, Beazley JA (with whom Sully and Howie JJ agreed) pointed out at [25] that:

“Waiver” has been expressed to be “a term of shifting meaning”: see Commonwealth v Verwayen (1990) 170 CLR 394 per Brennan J at 422; Smyth & Co v Bailey & Co [1940] 3 All ER 60 at 70. In Smyth, Lord Wright included amongst its meanings the case where “a party expressly or impliedly gives up a right”. In Verwayen itself, Brennan J stated that the sense in which the word “waiver” was being used was “a unilateral release or abandonment of a right” or, as his Honour said later, “waiver recognises the unilateral divestiture of certain rights”.

Upon that basis, the withdrawal by a taxpayer of a notice given by the taxpayer under s 14ZYA(2) before the deeming operation of s 14ZYA(3) would be sufficient to take effect is an act of waiver of the statutory consequences of giving that notice: Verwayen (1990) 170 CLR 394 at 424 (Brennan J). The notice having been withdrawn, s 14ZYA(3) could not have operative effect because the deeming operation is conditional upon a notice to the Commissioner invoking the section.

27    The construction of s 14ZYA which permits the taxpayer to waive the effect of s 14ZYA(3) both facilitates proper administration and furthers the purpose of s 14ZYA of providing a benefit to the taxpayer who may invoke its terms. There is nothing in the provisions to exclude the principle that the benefit of the power once exercised cannot be waived, and “where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating”: Shannon Realties Ltd v Ville de St Michel [1924] AC 185, 192-3.

28    The approach taken by the primary judge in deciding that a notice cannot be withdrawn is explained by the way in which the case was conducted before him. The question that the parties posed for his Honour’s determination was whether a power or right of withdrawal or revocation of a notice can be implied from the terms of the section. However, for the reasons given, the relevant question was whether the rights given to a taxpayer under s 14ZYA are rights that are capable of waiver. Regrettably, the primary judge did not have the benefit of the arguments based on the waiver principle and was not taken to the authorities which have applied that principle, which were plainly relevant. The respondents’ arguments before this Court, in so far as they are based on the authorities and principles concerned with implying words into a statute, do not engage with the relevant construction question and can be dismissed for that reason.

29    Additionally, we are, with respect, unable to agree with the primary judge’s basic reasoning. As the primary judge stated, s 14ZYA provides a mechanism by which a taxpayer can expedite the objection process and a s 14ZYA notice “starts the clock ticking” to bring the objection process to completion. The evident purpose of s 14ZY is to enable taxpayers, at their election, to impose a time limit on the determination of their objections. The certainty created by a notice given by a taxpayer under s 14ZYA is that the taxpayer will have an objection decision by the end of the 60 day period which can then be reviewed or appealed under Part IVC proceedings. Significantly, the certainty only arises as the result of the exercise by a taxpayer of a personal right. Significantly also, the Commissioner is not obliged to make a decision within 60 days from when the notice is given. Rather, because the section contains a deeming provision that operates if the Commissioner does not make a decision before the 60 day period has elapsed, the taxpayer at the end of the 60 day period is placed in the same position in respect of the statutory right to seek a review or to appeal an adverse objection decision, as if an adverse objection decision had actually had been made by the Commissioner. In those circumstances, there is no reason why the grant of the right to give a notice should not be capable of exercise more than once in relation to an objection which has not been determined. Moreover, it is not difficult to conceive that there may be circumstances where it would be to the advantage of a taxpayer to avoid the deemed adverse objection decision, and to seek an actual decision by the Commissioner as to whether to allow an objection in whole or in part. Nor is there reason why a withdrawal would have the effect of creating administrative inconvenience, given that the giving of a notice does not relieve the Commissioner from the duty to determine the objection. The only consequence of withdrawing a notice is that the taxpayer does not get a deemed objection decision.

leave to appeal should be granted

30    It is appropriate that leave to appeal be given in this case because the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court and substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9; Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138, [18]. In this case, the decision would result in the Court’s erroneous assumption of jurisdiction to deal with an appeal under Part IVC of the TAA. The issues raised by the appeal are limited to those necessary to determine the Court’s jurisdiction and their determination will affect the administration of taxation disputes, and potentially other proceedings, in this Court and the Administrative Appeals Tribunal. The controversy between the parties in this appeal affects the administration of the Australian Taxation Office and the way in which the Commissioner and taxpayers may conduct themselves. That controversy ought to be resolved quickly in the interests of public administration. Furthermore, the appeal will dispose of the proceeding currently before the Court. It will, in that event, alter the positions of the parties by reference to the statutory rights and obligations available to them in dealing with the respondent’s particular tax assessment. The particular statutory construction raised by the appeal will, as indicated, also have an impact upon dealings between the Commissioner and taxpayers other than the respondents. The ability of a taxpayer to waive an entitlement to the consequences of giving a notice under s 14ZYA may be a significant factor about which both the Commissioner and taxpayers need certainty. That ability is itself of potential benefit to a taxpayer in ongoing dealings with the Commissioner and in how the Commissioner may deal with tax disputes.

31    A matter relevant to whether substantial injustice would result if leave were refused, is that the Commissioner had not put to the trial judge the line of authority adopting the principle that a person can waive a statutory provision that is entirely for his or her own benefit. Reliance upon that principle seeks to raise purely a question of law in respect of an issue which is itself purely a question of statutory construction. The case had proceeded before his Honour on the basis that the dispute between the parties was about whether s 14ZYA should be construed as if there were a power to withdraw a notice which had been given, rather than whether the entitlement consequent upon the giving of a notice could be waived by a taxpayer before another provision had taken effect by the passage of time. It is important for leave to be granted to enable that issue to be raised because the application of that principle may be seen to further and facilitate the beneficial purpose of s 14ZYA for taxpayers who invoke its provision. The respondents’ tendentious submission that the Commissioner is “contending for an outcome in the instant case that this court should regard with distaste” and which “should weigh heavily in any consideration of whether to grant leave” is wholly unmeritorious and rejected.

costs

32    The respondents submitted that if leave is given and the appeal is allowed, the Commissioner should not receive his costs below but rather that each party should bear their own costs below by reason that the Commissioner has been successful on a different argument. We do not accept that submission. In both courts the issue has been one of construction and this is not a case where the Commissioner has presented an entirely different case, as was the position in Consolidated Media Holdings Ltd v Federal Commissioner of Taxation (2012) 201 FCR 470 and Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 on which the respondents relied. Those cases were quite different and can be distinguished.

Associate:

Dated: 16 March 2015