Other ATO Developments
Decision Impact Statement: Futuris
05.01.2009
The Commissioner has issued a Decision Impact Statement dealing with the High Court’s decision in FCT v Futuris [2008] HCA 32 in which the taxpayers sought (unsuccessfully) to challenge the validity of a Part IVA ITAA 1936 assessment in proceedings (brought under sec 39B of the Judiciary Act) on the basis that the Commissioner had double counted an amount (with the recognition that there could be a compensating adjustment if necessary).
The ATO takes the view that, with the exception of corrupt conduct or deliberate failure to comply with the provisions of the ITAA 1936, sec 175 ITAA 1936 will protect assessments from review under either sec 75(v) of the Constitution or sec 39B of the Judiciary Act.
The Commissioner will make strike-out motions (or seek summary judgment) in respect of sec 39B applications (or applications made under sec 75(v) of the Constitution) that do not have a solid basis (including substantial evidence to support allegations of corrupt conduct or deliberate failure to comply with the provisions of the Act).
The Commissioner will not consent to the adjournment of related objection/appeal proceedings pending determination of applications under either sec 75(v) of the Constitution or sec 38B of the Judiciary Act that do not have a solid prima facie basis and will generally argue that the court should not exercise its discretion to grant relief on the grounds that Part IVC provides a more appropriate remedy.
For the text of the Decision Impact Statement, click here.
