Federal Court of Australia

Hyder v Commissioner of Taxation (No 2) [2022] FCA 421

ORDERS

THE COURT ORDERS THAT:

1.    The decision of Ms Llorca of 26 February 2021 is set aside and remitted to the respondent to be decided according to law.

2.    The costs of and incidental to the application for review, and any aspect of any amendments to the application for review, and the costs of and incidental to the originating application and any aspects of any amendments to the originating application are reserved for later determination.

3.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

THE COURT DECLARES THAT:

1.    The conduct of the Commissioner of Taxation (the “Commissioner”) either by, or on behalf of, the Commissioner of seeking to enforce payment in the period from 25 May 2020 to 29 September 2020 of the full amount due under “primary” Notices of assessment for the 2015 and 2016 income years and Notices of liability to Shortfall Interest Charge (“SIC”) for those years issued to the first applicant, Mr Elton Matthew Hyder (“Mr Hyder”) on 22 May 2020 and 21 May 2020 respectively while, at the same time, seeking to enforce payment of the full amount of a Notice of assessment issued to the second applicant, EMHIV Pty Ltd as Trustee for the EMHIV Family Trust (the “Trustee” for the “Trust”) on 20 May 2020 issued for the 2015 income year in the “alternative” to the primary assessments issued to Mr Hyder, in circumstances where the assessments to Mr Hyder and the Trustee respectively as primary and alternative assessments are said, by the Commissioner, to have been issued consistently with and thus in conformity with a document issued by the Commissioner described as PS LA 2006/7, engaging an exercise of the power to issue alternative assessments to tax (and giving rise to consequential notices of SIC and other notices of tax-related liabilities), expressly in respect of the “same income and the same income year”, before the final resolution of a genuine dispute about the correctness of the alternative assessments, is conduct characterised as oppressive conduct in the sense contemplated by their Honours Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 67 as quoted in reasons for judgment published in these proceedings on 22 March 2022 at [201].

2.    The conduct of the Commissioner of Taxation (the “Commissioner”) either by, or on behalf of, the Commissioner of seeking to enforce payment in the period from 29 September 2020 to 27 July 2021 of the full amount due under “primary” Notices of assessment for the 2015 and 2016 income years, Notices of liability to Shortfall Interest Charge (“SIC”) for those years and Notices of assessment for Shortfall Penalty issued on 7 September 2020 for the 2015 and 2016 income years (which became payable on 29 September 2020), issued to Mr Hyder, while, at the same time, seeking to enforce payment of the full amount of a Notice of assessment issued to the second applicant as Trustee of the Trust for the 2015 income year in the “alternative” to the primary assessments issued to Mr Hyder and an amount due under a Notice of assessment of Shortfall Penalty issued to the Trustee on 7 September 2020 (and payable on 29 September 2020), in circumstances where the assessments to Mr Hyder and the Trustee respectively as primary and alternative assessments are said, by the Commissioner, to have been issued consistently with and thus in conformity with a document issued by the Commissioner described as PS LA 2006/7, engaging an exercise of the power to issue alternative assessments to tax (and giving rise to consequential notices of SIC and other notices of tax-related liabilities), expressly in respect of the “same income and the same income year”, before the final resolution of a genuine dispute about the correctness of the alternative assessments, is conduct characterised as oppressive conduct in the sense contemplated by their Honours Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 67 as quoted in reasons for judgment published in these proceedings on 22 March 2022 at [201].

3.    The conduct of the Commissioner in calling upon Mr Hyder, persons associated with Mr Hyder and entities under the control of Mr Hyder to pay the full amount of both the primary and the alternative assessments (and respective notices), before the final resolution of a genuine dispute about the correctness of the alternative assessments, is conduct characterised as oppressive conduct in the sense contemplated by their Honours Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 67 as quoted in reasons for judgment published in these proceedings on 22 March 2022 at [201].

4.    For the purposes of these declarations, the phrase “seeking to enforce payment” in the relevant periods means seeking to require of the taxpayers payment in full of each of the alternative assessments or alternatively payment of 50% of each of the alternative assessments with the balance the subject of securities provided by the taxpayers and others and otherwise seeking to secure arrangements for the payment of the full amount owing under both assessments jointly.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    On 22 March 2022, the Court published reasons for judgment in the principal proceeding: Hyder v Commissioner of Taxation [2022] FCA 264.

2    On that day, the Court made orders directing the applicants to submit proposed orders giving effect to the reasons for judgment. The Court also reserved the costs of and incidental to the proceeding for later determination. The Court made further orders on 29 March 2022 directing the respondent to provide comments in response to the applicants’ proposed orders.

3    These brief reasons are concerned with aspects of the final orders.

4    The parties have considered the proposed declarations and a proposed order of review in relation to Ms Llorca’s decision of 26 February 2021. Submissions have also been made in relation to the question of costs.

5    The question of costs will be further reserved to be determined in light of the submissions. A decision on that matter will be made in the course of next week.

6    As to the declarations, four declarations will be made in the following terms:

1.    The conduct of the Commissioner of Taxation (the “Commissioner”) either by, or on behalf of, the Commissioner of seeking to enforce payment in the period from 25 May 2020 to 29 September 2020 of the full amount due under “primary” Notices of assessment for the 2015 and 2016 income years and Notices of liability to Shortfall Interest Charge (“SIC”) for those years issued to the first applicant, Mr Elton Matthew Hyder (“Mr Hyder”) on 22 May 2020 and 21 May 2020 respectively while, at the same time, seeking to enforce payment of the full amount of a Notice of assessment issued to the second applicant, EMHIV Pty Ltd as Trustee for the EMHIV Family Trust (the “Trustee” for the “Trust”) on 20 May 2020 issued for the 2015 income year in the “alternative” to the primary assessments issued to Mr Hyder, in circumstances where the assessments to Mr Hyder and the Trustee respectively as primary and alternative assessments are said, by the Commissioner, to have been issued consistently with and thus in conformity with a document issued by the Commissioner described as PS LA 2006/7, engaging an exercise of the power to issue alternative assessments to tax (and giving rise to consequential notices of SIC and other notices of tax-related liabilities), expressly in respect of the “same income and the same income year”, before the final resolution of a genuine dispute about the correctness of the alternative assessments, is conduct characterised as oppressive conduct in the sense contemplated by their Honours Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 67 as quoted in reasons for judgment published in these proceedings on 22 March 2022 at [201].

2.    The conduct of the Commissioner of Taxation (the “Commissioner”) either by, or on behalf of, the Commissioner of seeking to enforce payment in the period from 29 September 2020 to 27 July 2021 of the full amount due under “primary” Notices of assessment for the 2015 and 2016 income years, Notices of liability to Shortfall Interest Charge (“SIC”) for those years and Notices of assessment for Shortfall Penalty issued on 7 September 2020 for the 2015 and 2016 income years (which became payable on 29 September 2020), issued to Mr Hyder, while, at the same time, seeking to enforce payment of the full amount of a Notice of assessment issued to the second applicant as Trustee of the Trust for the 2015 income year in the “alternative” to the primary assessments issued to Mr Hyder and an amount due under a Notice of assessment of Shortfall Penalty issued to the Trustee on 7 September 2020 (and payable on 29 September 2020), in circumstances where the assessments to Mr Hyder and the Trustee respectively as primary and alternative assessments are said, by the Commissioner, to have been issued consistently with and thus in conformity with a document issued by the Commissioner described as PS LA 2006/7, engaging an exercise of the power to issue alternative assessments to tax (and giving rise to consequential notices of SIC and other notices of tax-related liabilities), expressly in respect of the “same income and the same income year”, before the final resolution of a genuine dispute about the correctness of the alternative assessments, is conduct characterised as oppressive conduct in the sense contemplated by their Honours Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 67 as quoted in reasons for judgment published in these proceedings on 22 March 2022 at [201].

3.    The conduct of the Commissioner in calling upon Mr Hyder, persons associated with Mr Hyder and entities under the control of Mr Hyder to pay the full amount of both the primary and the alternative assessments (and respective notices), before the final resolution of a genuine dispute about the correctness of the alternative assessments, is conduct characterised as oppressive conduct in the sense contemplated by their Honours Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 67 as quoted in reasons for judgment published in these proceedings on 22 March 2022 at [201].

4.    For the purposes of these declarations, the phrase “seeking to enforce payment” in the relevant periods means seeking to require of the taxpayers payment in full of each of the alternative assessments or alternatively payment of 50% of each of the alternative assessments with the balance the subject of securities provided by the taxpayers and others and otherwise seeking to secure arrangements for the payment of the full amount owing under both assessments jointly.

7    The final orders will contain an order that the decision of Ms Llorca of 26 February 2021 be remitted to the Commissioner of Taxation to be decided according to law.

8    The question of costs in relation to that matter and the proceedings generally will be dealt with, in totality, separately.

Associate:

Dated:    21 April 2022