FEDERAL COURT OF AUSTRALIA

Grant v Deputy Commissioner of Taxation Commonwealth of Australia (No 2)

[2000] FCA 1308

TAXATION – examination pursuant to s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth) – whether independent counsel may question examinee – role of counsel in examination.

Income Tax Assessment Act 1936 (Cth):  s 264(1)(b)

DAVID KEITH GRANT & ORS v DEPUTY COMMISSIONER OF TAXATION COMMONWEALTH OF AUSTRALIA (No 2)

V 688 of 2000

GOLDBERG J

13 SEPTEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

HIS HONOUR:

1                     On 8 September 2000 the applicants filed an application seeking the following injunctive and declaratory relief:

“1.       A permanent injunction restraining the Respondent’s counsel questioning the Applicants during the interviews scheduled by the Deputy Commissioner of Taxation under notices served on the Applicants pursuant to section 264 of the Income Tax Assessment Act 1936.

2.         A declaration that the Respondent cannot require the Applicants to answer questions put to them by counsel retained on behalf of the Respondent during an examination under section 264 of the Income Tax Assessment Act 1936.”

Interlocutory relief was also sought in the terms of the permanent injunction.  The application for interlocutory relief came on for hearing before me on 8 September 2000.  I reserved my decision on that application and yesterday, 12 September 2000, I published my reasons for concluding that the application for interlocutory relief should be dismissed:  [2000] FCA 1298.

2                     I said in those reasons that the short point which arose for consideration was whether, for the purposes of s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth) (“the Act”), a person, required to attend and give evidence before officers authorised by the Commissioner, can be asked questions and be required to answer questions asked by independent counsel instructed by the respondent (“the Deputy Commissioner”), although the counsel is not an officer authorised by the Commissioner for the purposes of s 264(1)(b) of the Act. 

3                     In those reasons I said that I was satisfied that there was no serious question to be tried that s 264(1)(b) of the Act does not allow for counsel retained by the Deputy Commissioner to ask questions, the answers to which are to be given before authorised officers.  I said that I had been able to give proper consideration to the issue and in the circumstances, and although the point was novel, I did not find it difficult to decide.  I incorporate those reasons by reference in these reasons for judgment. 

4                     The respondent has now moved, by motion filed this day, 13 September 2000, for an order that the application be dismissed.  Neither party wishes to advance any further submissions in addition to the submissions which were made on 8 September 2000.  In those circumstances, for the reasons given in my reasons for judgment published on 12 September 2000, the application will be dismissed.  As the applicant has not succeeded the usual order for costs should be made that the applicant pay the respondent’s costs.

Associate:

Dated:              13 September 2000