Pitman v Commissioner of Taxation

• Jurisdiction: Australia Federal only
• Judgment Date: 16 December 2021
• Neutral Citation: [2021] FCAFC 230
• Date: 16 December 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Pitman v Commissioner of Taxation [2021] FCAFC 230

Appeal from:		Debbie Pitman v Commissioner of Taxation (, No. 2020/5086; 2020/5087; 2020/5088, 21 December 2020)
File number:	VID 44 of 2021
Judgment of:	ALLSOP CJ, DAVIES AND BROMWICH JJ
Date of judgment:	16 December 2021
Catchwords:	TAXATION – appeal from decision of the Administrative Appeals Tribunal that bankrupt applicant had no standing to extend time to seek review of Commissioner’s objection decision because applicant not a person “dissatisfied” within the meaning of s 14ZZ(1) Taxation Administration Act 1953 (Cth) – where after bankruptcy, applicant charged with four criminal offences under State law related to the tax debt or administration of bankrupt estate – whether successful review of objection decision would have any relevance to charges or conduct of criminal trial so as to make the applicant a person “dissatisfied”, that is with an interest beyond the effect of bankruptcy – limited evidence to support that factual inquiry – no error in Tribunal’s reasoning or application of McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 – appeal dismissed. ; PRACTICE AND PROCEDURE – primacy of Full Court authority, including in original jurisdiction – no argument advanced that long standing Full Court authority in McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 plainly wrong – court declined to reconsider. ; CONSTITUTIONAL LAW – whether s 14ZZ imposes incontestable tax liability.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 6(1), 12(1) Bankruptcy Act 1966 (Cth) s 134(1)(j) Crimes Act 1958 (Vic) s 82(1) Federal Court of Australia Act 1976 (Cth) Income Tax Assessment Act 1936 (Cth) Judiciary Act 1903 (Cth) s 78B Taxation Administration Act 1953 (Cth) s 14ZZ(1)
Cases cited:	Attorney-General (Vic) v Commonwealth [1945] HCA 30; 71 CLR 237 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 Boensch v Pascoe [2019] HCA 49; 268 CLR 593 Cummings v Claremont Petroleum NL [1996] HCA 19; 185 CLR 124 Deputy Commissioner of Taxation v Buzadzic [2019] VSCA 221 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Federal Commissioner of Taxation v Bosanac [2016] FCA 448; 103 ATR 51 Giris Pty Ltd v Commissioner of Taxation (Cth) [1969] HCA 5; 119 CLR 365 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 R v Falzon [2018] HCA 29; 264 CLR 361
Division:
Registry:
National Practice Area:
Number of paragraphs:	36
Date of hearing:	24 August 2021
Counsel for the Applicant:	Dr NF Orow
Solicitor for the Applicant:	Radovic Lawyers
Counsel for the Respondent:	Mr P Hanks QC and Ms C Horan
Solicitor for the Respondent:	ATO Review and Dispute Resolution

ORDERS

		VID 44 of 2021
BETWEEN:	DEBBIE PITMAN Applicant
AND:	COMMISSIONER OF TAXATION Respondent

order made by:	ALLSOP CJ, Davies and BROMWICH jj
DATE OF ORDER:	16 DECEMBER 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1. I have read the reasons to be published of Davies J. I agree with her Honour’s reasons and with the orders that she proposes. I have also read the reasons of Bromwich J and I also agree with those reasons.

2. I wish to add only two comments, both of which are consistent with the reasons of Davies J and Bromwich J.

3. First, as to McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458, it is to be noted that the Full Court in that case was sitting (as we are) in the original jurisdiction, although hearing a statutory “appeal” from the Administrative Appeals Tribunal. Justice Davies has set out what I said in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [2]–[13]. It is also necessary to reiterate the primacy of Full Court authority in this Court. As in FAK19 there was no argument on the matter, but for all the reasons set out in FAK19 at [14]–[29], in particular the reasons directed to the text and structure of the Federal Court of Australia Act 1976 (Cth), Full Court decisions in the original jurisdiction (often sat for the purpose of expressing a view on a legal or constructional question) should not be viewed somehow as of lesser authority than Full Court decisions in the appellate jurisdiction.

4. Secondly, the Tribunal here dealt with the matters put to it. There was no error of law in how it addressed the limited evidence and the submissions. It may well be, however, that in a given and different set of circumstances, a bankrupt taxpayer is “dissatisfied” within the meaning of the statute. It may be that the liability to tax said by the bankrupt taxpayer to have been wrongly imposed, is critical to the elements of a criminal charge concerned with the taxpayer’s taxation affairs. But it should not be thought that such a conclusion built on logical legal analysis of the elements of the offence is the only way one could demonstrate the requisite standing of “dissatisfaction” in circumstances where the taxpayer has been charged with a criminal offence concerned with his or her taxation affairs. Juries do not always reason in strictly logical or analytical ways. If there were evidence from someone of relevant experience that the overturning of the assessment could be a material factor (whether entirely logical or analytically satisfying) in persuading a jury of the innocence of the taxpayer in a criminal trial, such would be relevant to the evaluation of the question as to “dissatisfaction” and so standing.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.

Associate:

Dated: 16 December 2021

REASONS FOR JUDGMENT

DAVIES J:

5. The applicant (Ms Pitman) has appealed the decision of the Administrative Appeals Tribunal (the Tribunal) that she lacked standing to seek review of an objection decision made by the Commissioner of Taxation (the Commissioner) because she was not a person “dissatisfied” with the objection decision within the meaning of s 14ZZ of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act). At the time of the hearing, Ms Pitman was an undischarged bankrupt and counsel for Ms Pitman conceded at the hearing that McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 (McCallum) is authority that ordinarily a person who is a bankrupt would not have standing to seek a review of an objection decision. That is because bankruptcy operates to release the bankrupt from liability for the tax debt, with the consequence that the bankrupt is not a person upon whom the objection decision will continue to have legal effect. It was argued, however, that the objection decision in Ms Pitman’s case had consequences for her aside from the tax debt, because she had been charged, since she became bankrupt, with three counts of obtaining a financial advantage by deception from the...