FEDERAL COURT OF AUSTRALIA

Zeqaj v Deputy Commissioner of Taxation [2020] FCA 1270

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed, to be paid by the appellant or from the appellant’s estate in bankruptcy in accordance with the provisions of the Bankruptcy Act 1966 (Cth.), whichever is appropriate at the time payment is required.

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

REASONS FOR JUDGMENT

STEWARD J.:

1    The appellant, who was not represented before me, appeals from a decision of the Federal Circuit Court delivered on 26 September 2019 in which a sequestration order was made upon application by the respondent (the “Deputy Commissioner”) pursuant to s. 43 of the Bankruptcy Act 1966 (Cth.) (the “Bankruptcy Act”).

2    The appellant’s submissions were principally focused on impugning the income tax assessments that gave rise to the relevant judgment debt, the non-payment of which resulted in the learned primary judge making the sequestration order. The submissions sought to do so by attacking the substantive correctness of the assessments, their validity at law, and the constitutionality of the various legislative provisions relied upon by the Deputy Commissioner in his actions against the appellant, including in this proceeding.

3    However, this is not a proceeding under Pt. IVC of the Taxation Administration Act 1953 (Cth.) (the “T.A.A.”), nor under s. 39B of the Judiciary Act 1903 (Cth.) (the “Judiciary Act”). The appellant effectively exhausted his ability to challenge the substantive correctness of the assessments when he made an unsuccessful application to the Administrative Appeals Tribunal (the “A.A.T.”) for review of the decision effectively to disallow his objections to those assessments. The time within which to appeal the A.A.T.’s decision has lapsed. Accordingly, by reason of s. 175 of the Income Tax Assessment Act 1936 (Cth.) (the “1936 Act”) and s. 350-10 of Sch. 1 to the T.A.A., the appellant’s submissions were not capable of providing the learned primary judge with “sufficient cause” for the purposes of s. 52(2)(b) of the Bankruptcy Act to set aside the sequestration order. It was otherwise clear to me that the Deputy Commissioner complied with the applicable provisions of the Bankruptcy Act and its associated regulations. No error was shown in the decision of the learned primary judge and the appeal is therefore dismissed.

4    It was apparent to me from the appellant’s written material and his submissions before me at hearing that he felt aggrieved by his treatment by Victoria Police and that he felt he was being treated like a criminal. The fact that the attention or interest of the Commissioner of Taxation’s (the “Commissioner’s”) staff in the appellant may have been sparked by Victoria Police allegations did not impugn the validity of the assessments or the resulting sequestration order. However, I observe that the material before me did not disclose any criminal convictions against the appellant’s name.

Applicable Legislation

5    This proceeding concerns a number of provisions of the Bankruptcy Act and its associated regulations, as well as various provisions of the taxation legislation.

6    I commence with the Bankruptcy Act. Section 43 sets out the Federal Circuit Court’s jurisdiction to make sequestration orders. It relevantly provides:

Jurisdiction to make sequestration orders

(1)    Subject to this Act, where:

(a)    a debtor has committed an act of bankruptcy; and

(b)    at the time when the act of bankruptcy was committed, the debtor:

    (i)    was personally present or ordinarily resident in Australia;

    (ii)    had a dwelling-house or place of business in Australia;

(iii)    was carrying on business in Australia, either personally or by means of an agent or manager; or

(iv)    was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;

the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor.

7    Section 52 sets out further criteria that must be proved by a creditor before a sequestration order can be made. It relevantly provides:

Proceedings and order on creditor’s petition

(1)    At the hearing of a creditor’s petition, the Court shall require proof of:

(a)    the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

   (b)    service of the petition; and

(c)    the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

…

(2)    If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

   (a)    that he or she is able to pay his or her debts; or

(b)    that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.

8    Turning to the Bankruptcy Regulations 1996 (Cth.) (the “Bankruptcy Regulations”), reg. 16.01 sets out the various ways in which documents can be served for the purposes of the Bankruptcy Act or the Bankruptcy Regulations. The regulation provides:

Service of documents

(1)    Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or served on, a person (other than a person mentioned in regulation 16.02), the document may be:

(a)    sent by post, or by a courier service, to the person at his or her last-known address; or

(b)    left, in an envelope or similar packaging marked with the person’s name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility; or

(c)    left, in an envelope or similar packaging marked with the person’s name, at the last-known address of the person; or

   (d)    personally delivered to the person; or

(e)    sent by facsimile transmission or another mode of electronic transmission:

(i)    to a facility maintained by the person for receipt of electronically transmitted documents; or

(ii)    in such a manner (for example, by electronic mail) that the document should, in the ordinary course of events, be received by the person.

(2)    A document given or sent to, or served on, a person in accordance with subregulation (1) is taken, in the absence of proof to the contrary, to have been received by, or served on, the person:

(a)    in the case of service in accordance with paragraph (1)(a) or (b)—when the document would, in the due course of post or business practice, as the case requires, be delivered to the person’s address or document exchange facility; and

(b)    in the case of service in accordance with paragraph (1)(c), (d) or (e)—when the document is left, delivered or transmitted, as the case requires.

9    I turn next to the relevant taxation legislation. Section 175 of the 1936 Act provides that:

The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.

10    “[T]his Act” is defined in s. 6 to include a reference to:

(a)    the Income Tax Assessment Act 1997 (Cth.) (“the 1997 Act”);

(b)    Pt. IVC of the T.A.A. insofar as that Part relates to the 1936 Act, the 1997 Act or Sch. 1 to the T.A.A; and

(c)    Sch. 1 to the T.A.A.

11    Section 14ZZK(b) of the T.A.A. places the burden of proof on the taxpayer in an application for review before the A.A.T. It provides that:

Grounds of objection and burden of proof

…

(b)    the applicant has the burden of proving:

(i)    if the taxation decision concerned is an assessment—that the assessment is excessive or otherwise incorrect and what the assessment should have been; or

(ii)    in any other case—that the taxation decision concerned should not have been made or should have been made differently.

12    Section 14ZZM of the T.A.A. preserves the ability to institute recovery proceedings notwithstanding that a taxation decision is the subject of A.A.T. review. The section provides:

Pending review not to affect implementation of taxation decisions

The fact that a review is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.

13    Section 260-5 of Sch. 1 to the T.A.A., which is unnecessary for me to set out, empowers the Commissioner to issue what are often referred to as “garnishee notices” in order to collect a tax-related liability owed by an entity from a third party owing money to that entity.

14    Item 2 in the table contained within s. 350-10 of Sch. 1 to the T.A.A. provides that a notice of assessment is conclusive evidence of its proper making and, except in Pt. IVC proceedings, of the correctness of the amounts and particulars stated therein. Item 2 provides:

Evidence

Conclusive evidence

The following table has effect:

...

The production of … a notice of *assessment under a *taxation law … is conclusive evidence that:

  (a)    the assessment was properly made; and

(b)    except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment—the amounts and particulars of the assessment are correct.

15    The appellant’s material also required me to examine a medley of provisions:

(a)    Paragraphs 51(ii) and (xii) of the Constitution (as set out in s. 9 of the Commonwealth of Australia Constitution Act 1900 (Imp.) 63 & 64 Vict., c. 12 (the “Constitution”)), which respectively provide Federal Parliament with the power to make laws with respect to taxation and with respect to currency, coinage, and legal tender;

(b)    Section 80 of the Constitution, which provides for a right to trial by jury “on indictment of any offence against any law of the Commonwealth”;

(c)    Section 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic.) (the “Charter Act”), which provides that “[e]very person has the right to life and has the right not to be arbitrarily deprived of life”;

(d)    Article 14(2) of the United Nations International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (the “I.C.C.P.R.”), which provides that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”;

(e)    Article 11(1) of the United Nations Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) (the “U.D.H.R.”), which provides that “[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”;

(f)    Chapter 39 of the Magna Carta 1215, which broadly provides that no person shall be taken or imprisoned, or dispossessed of her or his property, liberties or customs, or outlawed or exiled, or otherwise harmed except by lawful judgment of her or his peers or by the law of the land;

(g)    Chapter 40 of the Magna Carta 1215, which broadly provides that to no person will justice or right be sold, deferred or denied — while the appellant referred to Chs. 39 and 40 of the Magna Carta 1215, I observe that these chapters continue to have force of law in Victoria pursuant to ss. 3 and 8 of the Imperial Acts Application Act 1980 (Vic.) as Ch. 29 of the Magna Carta 1297, which consolidated Chs. 39 and 40: Antunovic v. Dawson (2010) 30 V.R. 355; and

(h)    Section 39B of the Judiciary Act, which relevantly vests this Court with “jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.

Facts and Procedural History

16    In September 2014, the appellant objected to income tax assessments issued to him for the years of income ended 30 June 2006, and 30 June 2008 to 30 June 2011 (the “relevant years”). Those assessments were issued to the appellant after the Commissioner completed an audit of his affairs and determined that he had evaded income tax for the relevant years. I observe that the Commissioner did not form an opinion that the avoidance was due to fraud.

17    On 26 June 2015, the Commissioner disallowed those objections except in part for the 2006 year of income (“the Objection Decision”). That partial allowance had the effect of increasing the appellant’s taxable income for the 2011 year of income. The Commissioner accordingly issued amended assessments for the 2006 and 2011 years and an amended assessment for shortfall penalty for the 2011 year.

18    In August 2015, the appellant applied for A.A.T. review of the Objection Decision. Meanwhile, also in August 2015, the Deputy Commissioner commenced a proceeding in the Supreme Court of Victoria seeking to recover amounts payable in respect of income tax for the relevant years, general interest charge, shortfall interest charge, administrative penalties, and other interest and costs (the “Supreme Court Proceeding”).

19    On 6 April 2016, the A.A.T. affirmed the Objection Decision: Zeqaj and Commissioner of Taxation [2016] AATA 218; (2016) 102 A.T.R. 975. The appellant did not appeal this decision and is well outside the ordinary 28 day time period within which to do so provided by s. 44 of the Administrative Appeals Tribunal Act 1975 (Cth.).

20    On 13 July 2016, the Deputy Commissioner obtained judgment in default of appearance against the appellant in the Supreme Court Proceeding.

21    On 1 March 2017, a bankruptcy notice was issued by the Official Receiver on the application of the Deputy Commissioner pursuant to s. 41 of the Bankruptcy Act. The bankruptcy notice was personally served on the appellant at his workplace on 1 December 2017. On 7 March 2018, the Deputy Commissioner filed a creditor’s petition in the Federal Circuit Court seeking a sequestration order against the estate of the appellant pursuant to s. 43 of the Bankruptcy Act (the “Bankruptcy Proceeding”).

22    On 23 August 2018, the appellant filed a summons seeking to set aside the default judgment entered on 13 July 2016. On 27 March 2019, the Supreme Court of Victoria made orders refusing the appellant’s application to set aside the default judgment and dismissing the summons: Deputy Commissioner of Taxation v. Zeqaj [2019] VSC 194. The appellant has not sought leave to appeal against this decision.

23    On 26 September 2019, the learned primary judge delivered judgment in the Bankruptcy Proceeding, ordering that the appellant’s estate be sequestrated. The appellant now appeals from this judgment.

The Federal Circuit Court

24    The Deputy Commissioner sought a sequestration order based upon the appellant’s act of bankruptcy in failing to pay the amount set out in the bankruptcy notice. The Deputy Commissioner’s case before the learned primary judge was simple; he submitted that he had complied with the requirements of the Bankruptcy Act and that the relevant debt remained unsatisfied (at [8]).

25    The appellant relied upon the various grounds of opposition as stated in his notice stating grounds of opposition to application, interim application or petition. There were also numerous other grounds contained in the appellant’s extensive affidavit material and submissions before the learned primary judge. I have summarised the grounds below and have generally followed the order in which they were carefully dealt with by his Honour.

26    First, the appellant contended that he was not appropriately served, alleging that there were attempts to “maliciously serve documents” on him in a public workplace. He relied upon reg. 16.01 of the Bankruptcy Regulations. The learned primary judge held that there was nothing in reg. 16.01 which could impugn the manner in which the relevant documents were served on the appellant. The learned primary judge noted that bankruptcy documents are still commonly served personally on the debtor to ensure there is no doubt the debtor is aware of the documents, and that nothing required the alternative methods set out in reg. 16.01 to be used (at [16]-[18]).

27    Secondly, the appellant claimed that the learned primary judge did not have jurisdiction to hear an application for a sequestration order. His Honour held that the Federal Circuit Court has jurisdiction under the Bankruptcy Act to hear such an application, and has such accrued jurisdiction as is necessary to carry out that task (at [25]).

28    Thirdly, the appellant attacked the constitutional validity of Commonwealth income taxation legislation in reliance upon a number of grounds:

(a)    The appellant claimed that capital gains tax (“C.G.T.”) as assessed in accordance with Pt. 3-1 of the 1997 Act is unconstitutional, relying upon s. 51(xii) of the Constitution; his Honour queried the relevance of this paragraph and referred to s. 51(ii), which sets out the Commonwealth’s taxation power (at [26]-[27]]).

(b)    The appellant claimed that the Commissioner is not recognised by the Constitution; his Honour held that the Australian Taxation Office (the “A.T.O.”) is established appropriately by Commonwealth legislation that Parliament has power to pass under the Constitution. There is no requirement for the Commissioner’s position to be established by a provision in the Constitution itself (at [28]).

(c)    The appellant criticised the operation of the C.G.T. provisions, particularly the manner in which they address inflation; his Honour held that such policy criticisms of themselves carry no weight in legal proceedings (at [29]-[30]).

(d)    His Honour referred to and rejected a number of arguments purporting to rely upon the Constitution, including criticisms as to the constitutionality of notices issued under s. 260-5 of Sch. 1 to the T.A.A. (at [31]-[34], [45]).

(e)    The appellant argued that he had a constitutional right to trial by jury; his Honour rejected this argument as s. 80 of the Constitution only provides for trial by jury “on indictment of any offence”. That section is not relevant to the pursuit through civil proceedings of tax debts due and owing to the Commonwealth (at [35]-[36]).

(f)    The appellant criticised the reversal of the onus of proof in the A.A.T; his Honour held, in reliance upon High Court authority, that there is nothing unconstitutional about reversing the onus of proof in proceedings (at [37]).

(g)    The appellant attacked the constitutionality of taxation in reliance upon Chs. 39 and 40 of the Magna Carta 1215. His Honour rightly held that the provisions, either in their English translation or original Medieval Latin form, did not provide a basis for concluding that the assessment of taxation under Australia’s taxation legislation is unconstitutional or, in any other form, faces legal impediments. The learned primary judge noted that most of the provisions of the Magna Carta 1215 were repealed in the 19th century in England and do not constrict the power of the Commonwealth under the Constitution (at [42]-[44]).

29    Fourthly, the appellant submitted that the imposition of taxation and the reversal of the onus of proof in some way arbitrarily deprived him of life, relying upon s. 9 of the Charter Act. He also contended that he had been denied the presumption of innocence as set out in Art. 14(2) of the I.C.C.P.R. and Art. 11(1) of the U.D.H.R. His Honour held that such arguments were not tenable in civil proceedings under Commonwealth taxation legislation, such as the proceeding before him (at [38]-[41]).

30    Fifthly, the appellant claimed that he was the victim of conscious maladministration on the part of the A.T.O.; his Honour held that there was nothing to suggest that any of the Commissioner’s staff had performed acts that were invalid or unlawful and relevant to the actual assessments that had been issued (at [46]-[48]).

31    Sixthly, the appellant alleged that there was impropriety by the Commissioner’s staff in having received information from Victoria Police, which alleged that he had been dealing in marijuana (noting, again, that he does not appear to have been convicted of any such offences). The appellant pointed to statements made by Victoria Police in relation to his alleged conduct for which he was awarded compensation following a complaint he brought before the Victorian Civil and Administrative Tribunal. His Honour rejected these claims, noting that even if the matter that had prompted the Commissioner’s staff to consider the appellant’s financial affairs was information that ought not to have been provided by Victoria Police, the relevant assessments were based on an audit of the appellant’s assets compared with his declared receipts of moneys. The fact that attention or interest in the appellant may have been sparked by Victoria Police allegations did not impugn the validity of the resulting assessments (at [49]-[55]).

32    Seventhly, the appellant claimed that the Commissioner had violated the Taxpayers’ Charter. Even if there were violations of the Taxpayers’ Charter, the learned primary judge held that this did not affect the validity of the relevant assessments, as it is not a legally enforceable document (at [56]-[58]).

33    Eighthly, the appellant claimed he was defrauded because of the manner in which the C.G.T. provisions accounted for inflation. His Honour held that such a policy criticism could not ground a claim for fraud (at [59]-[61]).

34    Ninthly, the appellant claimed damages for losses he allegedly suffered because of the Commissioner’s conduct. His Honour held there was no identified legal basis for such claims (at [62]).

35    Tenthly, the appellant argued that he ought to have been given legal representation at public expense. The learned primary judge acknowledged there may be a legal requirement to ensure a person is legally represented in certain complex criminal proceedings to ensure a fair trial. However, such a requirement had no applicability to civil proceedings concerning the correctness of income tax assessments (at [63]).

36    Eleventhly, the appellant attacked the merits of the assessments underlying the judgment debt, asserting the assessments were invalid and that new evidence demonstrated this. He said the assessments were based on gifts he received from his family and that rental income paid into his account was paid by mistake. His Honour noted that none of this material appears to have been unavailable at the time of the A.A.T. hearing, and in any event that the material did not appear to raise any real argument that the relevant assessments were assailable (at [64]-[67]).

37    Finally, the appellant criticised the previous decisions of the A.A.T. and Supreme Court of Victoria. His Honour held that he did not have jurisdiction to consider criticisms of decisions in those jurisdictions and otherwise considered the criticisms lacked merit (at [68]-[69]).

38    Accordingly, his Honour was not persuaded that any of the appellant’s grounds were made out and was satisfied that the Deputy Commissioner had met the requirements for a sequestration order. The learned primary judge therefore made this order pursuant to s. 52 of the Bankruptcy Act.

39    Importantly, his Honour also made the following comments about the assessments underpinning the Deputy Commissioner’s application and the inability to “look behind” those assessments in the absence of any appeal from the A.A.T. decision made in 2016 (at [71]-[72]):

In this case, I am not persuaded that the respondent has matters upon which it is arguable that he has a claim against the ATO that would offset the debt either at law or otherwise. Nor am I satisfied that the respondent’s claims with respect to the method of assessment and the decision of the AAT are such as to justify looking behind the assessment. Even if I am in error in concluding that the respondent has no arguable basis for challenging the tax assessment, the effect of the decision of the High Court in Clyne v Deputy Commissioner of Taxation (1983) 48 ALR 545 at 547 is that a notice of assessment under the Income Tax Assessment Act is conclusive and, therefore, a dispute as to the assessment of taxation does not affect the capacity of a Commissioner of Taxation to proceed by way of bankruptcy proceedings. This reasoning was applied by Robertson J in Rosa Caporale v Commissioner of Taxation [2013] FCA 473.

If the debtor had commenced proceedings in the Federal Court to appeal from the AAT decision in a timely manner, it may have been appropriate to adjourn the bankruptcy proceedings to allow such an appeal to be determined, just as in these proceedings the matter was adjourned to allow the respondent to pursue his application to set aside the default judgment in the Supreme Court. The respondent has not sought to pursue an appeal from the AAT to the Federal Court.

The Appeal

40    The appellant relied upon the following grounds, produced directly from his notice of appeal:

1.    Judge Riethmuller is in error when he accepted the order of Mukhtar AsJ from the Victorian Supreme Court that service of documents on I Visho Zeqaj had been met. For service to be met the process server should have identified himself, the documents must be laid down before me and I must be told what they were about. This did not occur. Nor was there any record of where the process sever put the documents when he left. Staff found nothing the only conclusion is the process server did not want to leave private documents in a public place and left with them. I don’t accept documents at work, I am to busy. The process server also violated a subpoena made by the respondents lawyers to attend the hearing for questioning, he did not attend the hearing for questioning. The process server in his affidavit had no memory of my place of work or ever serving me, stated in his affidavit. The detailed facts are provided in my Affidavit Affirmed on 28/06/2019. As I was not served any documents, I was not aware of any proceedings to defend myself as I am now. Failure to address and understand the details in my Affidavits has resulted in a perverted judgment. A great deal of time has passed thus the matter should have been dismissed.

2.    Judge Riethmuller is in error to say that I do not have an arguable Constitutional issue and calling it a policy issue. The Constitution was enforced in 1901, section 51(ii) tax, applies to income, property, objects, duties. Inflation is none of these and did not exist and was not intended to be considered in any way or form as something intended to be ever taxed. It is the intended purpose and the understanding of the law at the time (in 1901) that applies today. The current Capital Gains Tax is in fact Capital Inflation Tax. It is unconstitutional to tax inflation. The system has gone behind the Constitution and essentially called Capital Inflation Tax, Capital Gains Tax, They are not the same. The correct way to calculate Capital Gains Tax in accordance to the meaning and understanding of the Constitution, still unchanged to date is detailed in my Affidavit Affirmed on 27/5/2019 paragraphs 52 onwards. Thus also satisfying that under the TAXATION ADMINISTRATION ACT 1953 - SECT 14ZZK (a) and (b), the assessment was excessive, incorrect and should have been made differently. Failure to address and understand the details in my Affidavits has resulted in a perverted judgment. The matter should have been referred to the appropriate court for interpretation.

3.    Judge Riethmuller is in error to say that SCHEDULE 1, SECTION 260 -5 -COMMISSIONER MAY COLLECT AMOUNTS FROM THIRD PARTY of the TAXATION ADMINISTRATION ACT 1953 is a none Constitutional matter. To freeze and remove my only income has denied my right not only to life but to exist under the Constitution. Without some access to income how am I able to live, pay for a home address so I can for fill my Constitutional right to vote, amongst other things. So I can for fill my Constitutional right to be Australian my right to buy food, medicine and water, and practice the freedoms given under the Constitution. I was put at the mercy of others by SCHEDULE 1, SECTION 260 -5 - COMMISSIONER MAY COLLECT AMOUNTS FROM THIRD PARTY of the TAXATION ADMINISTRATION ACT 1953. The broader understanding of the Constitution, the right to vote (peaceful transition of power), freedom of religion, trial by jury, is for the benefit of the people and does not deprive life. Failure to address and understand the details in my Affidavits has resulted in a perverted judgment. It should not take a tragedy to change, waiting to see how long someone can live without income. Where is the over sight. The matter should have been referred to the appropriate court for interpretation.

4.    Judge Riethmuller is in error to say there is nothing unconstitutional in reversing the onus. There is, as in the Constitution provides the right to a trial by jury (Protection from the state) where one is presumed innocent. Reversing the onus encroaches outside the scope of the true understanding and intension of the Constitution and as in Dietrich v The Queen [1992], denied my right to a fair hearing, a human right. Who’s to say that for a lesser matter a different matter (criminal or civil) I do not deserve the right to a fair hearing, reversing the onus on me has entertained a miscarriage of justice, how can I challenge or go against the mighty resources of the state without the knowledge of a lawyer or a judge and not having the income to afford those capable of defending me is not only malicious its unjust, especially after having my income frozen and taken. Failure to address and understand the details in my Affidavits has resulted in a perverted judgment. The matter should have been referred to the appropriate court for interpretation. It should never take a tragedy to instigate a just change.

5.    Judge Riethmuller is in error to presume no maladministration. The accuracy of personal information especially when going up against the state (can decide if one is guilty or not) is an inherent public interest ( the right to a fair hearing). The Act of Bias, I was denied any rights when the ATO accepted an allegation proven not to be true, as fact, acting on it and changing the course and outcome of the overall assessment, applying maximum penalties and interest, denying my right to the ATO charter for a peaceful resolution and not being believed or respected. Section 14ZZK only reverses the onus in relation to the assessment. I should not been treated and acted upon as a criminal from an allegation, not true or accurate by definition and proven not true in the Tribunal Order, in my Affidavit Affirmed on 27/5/2019 paragraphs 9, 10 onwards and Annexure R. This biased infected mindset denied my right to be believed and inflated ATO false beliefs, penalties, interest, rejection of facts and to use there discretion fairly, one or all of theses factors renders the assessment inaccurate and or in error. The belief that I am a criminal and acting on it when proven not true has perverted the assessment and thus cannot be accurate or its true from. Judge Riethmuller has failed to understand that a false image has denied me to be believed and denied the ATO’s discretion at least in an impartial manner. Also satisfying that under the TAXATION ADMINISTRATION ACT 1953- SECT 14ZZK (a) and (b), the assessment was excessive, incorrect and should have been made differently. Failure to address and understand the details in my Affidavits has resulted in a perverted judgment. ( A number in an equation that is inaccurate or left out always leads to the wrong result.) The matter should have been dismissed.

6.    Judge Riethmuller is in error when he said in his judgment paragraph 66 “He also argued that the rental income paid into his account was paid by mistake and ought to have been paid to his mother and that the AAT ought to have accepted that claim.”. This is not true and should be dismissed.

7.    Judge Riethmuller is in error to ignore and not address that my Tax refunds claimed did not include interest lost, gained and taken by the ATO. It was not there money to profit from nor was authorisation or permission given by me. This lost interest is in fact owed to me once it also has been taxed. This is detailed in my Affirmed Affidavits. The missing interest was ignored. This also satisfies that under the TAXATION ADMINISTRATION ACT 1953 - SECT 14ZZK (a) and (b), the assessment was excessive, incorrect and should have been made differently. Failure to address and understand the details in my Affidavits has resulted in a perverted judgment. The matter should have been dismissed.

(Errors in original.)

41    The appellant sought the following orders relying upon these grounds:

1.    In my Affidavit Affirmed on 27/5/2019 the ATO in Annexure O2, O4 and O5 said Yes I am linked to organised crime, this is not true or accurate as proven in the tribunal order Annexure R and the very reason all this started in the way it did. It is reckless and malicious, I want it rectified, put, alleged by Victoria Police, proven not true or accurate by the tribunal VCAT, simply NO.

2.    Annexure O5 refers me to a foreigner with Australian citizenship, I was born and raised in Melbourne all my life if I’m not an Australian what are you all English, Greek, Irish, Scottish, French, Italian all with citizenships right. I want it fixed, I am an Australian thats it. This false image is reckless.

3.    To dismiss the judgment made against me and declaring the assessment and sequestration order to be invalid and thus quashing it justified by the evidence in my Affidavits, and I also seek orders preventing the Commissioner from taking any action against me in relation to this matter.

4.    I also seek compensation for my loses, pain and suffering ( continuous mental agony ) from this miscarriage of justice.

(Errors in original.)

Submissions of the Appellant

42    The written submissions and those made during the hearing appeared essentially to restate many, if not all, of the grounds advanced before the learned primary judge. Namely, the appellant alleged that there had been conscious maladministration by the Commissioner’s staff because of alleged improper conduct by Victoria Police; that the Commissioner’s staff took invalid legal action because the Commissioner is not recognised by the Constitution or alternatively because the appellant was improperly served at his workplace; that C.G.T. is unconstitutional because of the manner in which it taxes inflation; that the relevant assessments purported to tax the appellant based on amounts that were included in his assessable income in error; that the reversal of the onus of proof under s. 14ZZK of the T.A.A. is unconstitutional; that being bankrupted before his avenues of appeal had been exhausted infringed upon the appellant’s human rights; that the issue of garnishee notices under s. 260-5 of Sch. 1 to the T.A.A. is unconstitutional; and that the appellant had been defrauded of various amounts described as income, interest, losses, and damages for pain and suffering.

Submissions of the Deputy Commissioner

43    The Deputy Commissioner submitted that the learned primary judge had correctly concluded that the appellant’s various grounds of opposition had not been made out. It was submitted that the learned primary judge was correct to conclude that the appellant’s claims with respect to the method of assessment and the decision of the A.A.T. did not justify looking behind the relevant assessments. The learned primary judge was otherwise correct to rely upon the decision of Clyne v. Deputy Commissioner of Taxation (1983) 57 A.L.J.R. 673 and find “that a notice of assessment under the Income Tax Assessment Act is conclusive and, therefore, a dispute as to the assessment of taxation does not affect the capacity of a Commissioner of Taxation to proceed by way of bankruptcy proceedings” (at [71]).

44    The Deputy Commissioner otherwise distilled seven grounds of appeal from the appellant’s material and dealt with those grounds as follows:

(1)    Service of documents: there was no error in the finding of the learned primary judge that the appellant had been properly served with documents at his workplace;

(2)    Constitutionality of C.G.T. provisions: the appellant’s criticisms of the C.G.T. provisions were in essence an objection as to the policy basis for those provisions and did not demonstrate the provisions were unconstitutional;

(3)    Constitutionality of s. 260-5: none of the appellant’s material demonstrated that s. 260-5 of Sch. 1 of the T.A.A. was unconstitutional. The Deputy Commissioner also observed that s. 260-5 was not relied upon in making the assessments or in seeking the judgment debt, and it therefore was strictly irrelevant to the making of the sequestration order.

(4)    Constitutionality of s. 14ZZK: there was no error in the finding that s. 14ZZK was not unconstitutional. The Deputy Commissioner also observed that under s. 14ZZM of the T.A.A., his capacity to recover the amounts payable under the assessments was not hindered by any issues arising in the appellant’s Pt. IVC proceeding, which by the time the judgement debt was obtained had already concluded in any event. The issue of whether or not s. 14ZZK was constitutionally valid therefore had no bearing on the judgment debt and the sequestration order.

(5)    Conscious maladministration: the appellant produced no evidence which would support, even at a prima facie level, that there had been any conduct which could amount to conscious maladministration in the sense described in Federal Commissioner of Taxation v. Futuris Corporation Ltd (2008) 237 C.L.R. 146. The Deputy Commissioner also submitted that the allegations of conscious maladministration could only be properly litigated under s. 39B of the Judiciary Act in the Federal Court and not in the Federal Circuit Court. No such application to the Federal Court under s. 39B had been made.

(6)    Rental income: arguments regarding the incorrect inclusion of rental income in the appellant’s taxable income could not be made before me given the conclusiveness of the relevant assessments by virtue of s. 175 of the 1936 Act and s. 350-10 of Sch. 1 to the T.A.A.

(7)    Interest defrauded: the appellant had not identified any factual or legal basis for any “tax refund” that could offset the judgment debt. The learned primary judge correctly found that he was not persuaded that the appellant had demonstrated matters upon which it was arguable that he had a claim against the Deputy Commissioner that would offset the judgment debt either at law or otherwise.

Disposition

45    I respectfully agree with the Deputy Commissioner’s submissions that the appellant has shown no error in the reasons of the learned primary judge. I otherwise also respectfully agree with the decision of the learned primary judge for the reasons given by his Honour.

46    For the sake of completeness I add the following.

47    First, the effect of s. 350-10 in Sch. 1 to the T.A.A. is that the production of the assessments that gave rise to the judgment debt is conclusive evidence that the amounts and particulars of the assessments are correct, except in proceedings under Pt. IVC of the T.A.A. The proceeding before the learned primary judge, and the appeal before me, were not proceedings under Pt. IVC. The appellant’s ability to bring Pt. IVC proceedings was exhausted after the A.A.T. made its decision dated 6 April 2016, which essentially affirmed the income tax assessments issued to the appellant for the relevant years. The appellant did not appeal from that decision. The appellant was therefore unable to impugn the sequestration order in the Federal Circuit Court or in this Court by disputing the substantial correctness of the underlying assessments.

48    Secondly, the proceedings were not proceedings commenced under s. 39B of the Judiciary Act. Accordingly, by virtue of s. 175 of the 1936 Act, I was unable to entertain the appellant’s arguments as to the legal validity of the assessments. In that respect, assuming that the Commissioner’s staff had relied upon the Victoria Police allegations, there is no suggestion, or evidence to support the proposition, that the Commissioner’s staff, in issuing the amended assessments to the appellant, had deliberately assessed his taxable income knowing that the amounts thereby assessed were incorrect or arbitrary, or were known to be based on incorrect information, or were otherwise the product of bad faith: Federal Commissioner of Taxation v. Futuris Corporation Ltd (2008) 237 C.L.R. 146; Denlay v. Federal Commissioner of Taxation (2011) 193 F.C.R. 412; Federal Commissioner of Taxation v. Donoghue (2015) 237 F.C.R. 316; Gould v. Deputy Commissioner of Taxation [2017] FCAFC 1; (2017) 343 A.L.R. 275.

49    Thirdly, I am satisfied that the bankruptcy notice was validly served on the appellant on 1 December 2017. It is plain from its terms that reg. 16.01 of the Bankruptcy Regulations cannot be relied upon to impugn the validity of the personal service of documents on an individual at her or his workplace.

50    Fourthly, I am also satisfied that the appellant committed an act of bankruptcy in failing to pay the amount set out in the bankruptcy notice. That amount arose after the Deputy Commissioner obtained judgment in default of appearance against the appellant in the Supreme Court Proceeding. The appellant’s application to set aside that default judgment was refused and he did not seek leave to appeal against that refusal decision. I otherwise agree with the learned primary judge that the Deputy Commissioner complied with the requirements of the Bankruptcy Act and that the debt remains unsatisfied.

51    Finally, no argument was made before me that the appellant is solvent and able to pay his debts as and when they fall due. Further, as noted above, the appellant was unable to impugn the sequestration order by disputing the substantial correctness of the underlying assessments. It follows that there is no “sufficient cause” for the purposes of s. 52(2)(b) of the Bankruptcy Act that would warrant a sequestration order not being made.

52    The appeal should be dismissed with costs.

Associate:

Dated:    4 September 2020