FEDERAL COURT OF AUSTRALIA

Clark v Commissioner of Taxation (No. 2) [2009] FCA 1496

TAXATION – consideration of submissions in relation to the form of orders to be made arising out of the publication of reasons for judgment in Clark v Commissioner of Taxation [2009] FCA 1401 on 30 November 2009

Taxation Administration Act 1953 (Cth), s 14ZZP

DAVID CLARK v COMMISSIONER OF TAXATION

QUD 500 of 2006

HELEN CLARK v COMMISSIONER OF TAXATION

QUD 501 of 2006

GREENWOOD J

14 DECEMBER 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The objection decision of the respondent dated 27 October 2006 is varied by setting aside the disallowance of the applicant’s objection to the respondent’s Amended Assessment the subject of para 1 of the application filed on 15 December 2006 and substituting for that decision, a decision allowing the objection of the applicant.

3.                  The Commissioner of Taxation is directed to issue an Amended Assessment taking account of the reasons for judgment published on 30 November 2009. 

4.                  The respondent pay the costs of the applicant of and incidental to the application. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Court Search on the Court’s website.

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The objection decision of the respondent dated 27 October 2006 is varied by setting aside the disallowance of the applicant’s objection to the respondent’s Amended Assessment the subject of para 1 of the application filed on 15 December 2006 and substituting for that decision, a decision allowing the objection of the applicant.

3.                  The Commissioner of Taxation is directed to issue an Amended Assessment taking account of the reasons for judgment published on 30 November 2009. 

4.                  The respondent pay the costs of the applicant of and incidental to the application. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Court Search on the Court’s website.

REASONS FOR JUDGMENT

1                     In these proceedings, reasons for judgment were published on 30 November 2009.  Each application was adjourned to 14 December 2009 to enable the parties to make further submissions as to the form of orders to be made including orders as to costs, in light of the reasons for judgment.  Short submissions were received as to those matters.  Having regard to the reasons for judgment, the appeal of each taxpayer from the Commissioner’s appellable objection decision is to be allowed.  Section 14ZZP of the Taxation Administration Act 1953 (Cth) provides that the Court may make such order in relation to the appellable objection decision as it thinks fit including an order varying the decision. 

2                     It seems to me that the appropriate orders are these:

1.                  The appeal be allowed.

2.                  The objection decision of the respondent dated 27 October 2006 is varied by setting aside the disallowance of the applicant’s objection to the respondent’s Amended Assessment the subject of para 1 of the application filed on 15 December 2006 and substituting for that decision, a decision allowing the objection of the applicant.

3.                  The Commissioner of Taxation is directed to issue an Amended Assessment taking account of the reasons for judgment published on 30 November 2009. 

3                     As to the question of costs, the applicants initially sought an order for indemnity costs although that matter has not been pressed.  The appropriate order is an order that the respondent pay the costs of each applicant of and incidental to the application. 

Associate:

Dated:         14 December 2009