David Jones Finance and the Income Tax Review and Appeal Process
| Author | Abe I Greenbaum |
| DOI | 10.22145/flr.22.3.7 |
| Published date | 01 September 1994 |
| Date | 01 September 1994 |
| Subject Matter | Article |
DAVID
JONES FINANCE
AND
THE INCOME TAX REVIEW
AND
APPEAL PROCESS
Abe
I Greenbaum*
INTRODUCTION
The exclusion of judicial review of assessment decisions
by
the Federal Commissioner
of Taxation (the Commissioner)
through
the privative clause
ins
177 of
the
Income Tax
Assessment
Act 1936 (Cth) (the Assessment Act)
was
challenged
and
found
wanting
in
David
Jones
Finance
Investments Pty
Ltd
and
Adsteam
Finance
& Investments Pty
Ltd
v
Federal
Commissioner
of
Taxation
1
(David
Jones
Finance).
The decision
has
affected
the
interpretation
of the effectiveness of the privative clause
and
has
potentially
opened
up
a
new
mechanism
for
appeaiing
against decisions of the Commissioner.
Privative,
or
ouster, clauses are legislative provisions
which
attempt
to exclude
judicial
review
of administrative decisions. There are
two
broad
categories of
privative
clauses:
Firstly there is the approach which
in
general aims
at
giving the subordinate legislation
or
administrative discretionary decision
such
qualities
of
paramountcy
and
unchallengability so as to place it
on
a pinnacle above the possibility
of
vulnerability to
judicial onslaught. Secondly there is the exclusionary approach which proceeds
by
prohibiting recourse to the courts
by
one or more of the typical
and
traditional
techniques for judicial control, for instance
by
the prerogative writs of certiorari
or
prohibition. 2
Section 177 of
the
Assessment Act contains elements of
both
types of
ouster
of
jurisdiction. The provision
was
designed
to limit review of assessments to those
mechanisms
outlined
in
the section
and
also to foreclose
any
opportunity
for a
taxpayer
to
delay
the
assessment process
through
appeals
attacking
the
process,
where
there
may
be
no
dispute
about
the
actual
amount
assessed as owing.
It
reads:
*
1
2
The
production
of a notice
of
assessment,
or
of a document
under
the
hand
of the
Commissioner, a Second Commissioner,
or
a
Deputy
Commissioner,
purporting
to be a
copy
of
a notice of assessment, shall be conclusive evidence of the
due
making
of the
assessment
and,
except
in
proceedings
under
Part IVC of the Taxation Administration
BA
(Toronto),
LL
B (Osgoode),
LL
M(Labor) (NYU),
LL
M (NYU), Senior Lecturer ATAX
Program
University
of
New
South Wales.
(1991)
21
ATR 1506 (Full Federal Court).
E I Sykes, D J
Lanham
and
R S S Tracey,
General
Principles
of Administrative
Law
(2nd
ed
1984)
at
328.
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