Taxman may let you off if you are a Natural Person!

Wednesday , 18, November 2015 Leave a comment


Taxman may let you off (a security for costs order) if you are a Natural Person, but not a Corporation nor an Expat!

Security for costs; taxpayer appeals, 17 November 2015

CASE : Per Oswal v Commissioner of Taxation (No 2) [2015] FCA 1143

FCA

Although the imposition of taxation may not be made incontestable, that does not mean that a court[1] does not have the power to order security for costs at the behest of the Commissioner against the taxpayer, including the power to order dismissal on default!”

“Nevertheless, there was a strong predilection against awarding security for costs against a natural person at least in taxation proceedings at first instance that involved a bona fide claim.”

“It is clear from a reading of Hill J’s reasons that he did not doubt that the Court had power[2] … but that discretionary considerations weighed heavily in favour of not doing so against a natural person in a proceeding brought by him or her under Part IVC of the Administration Act.[3]

“Further, even if the proceedings were not to be regarded as defensive, the relief sought by the taxpayers, and the constitutional and statutory context in which that relief was being sought, would still be a highly relevant consideration not favouring a security for costs order, when it came to exercising the discretion.”

Nevertheless, there were some situations where security should be ordered — one of which being where the applicant is a person who does not ordinarily reside in Australia, and who has no assets in the jurisdiction — as here.

That would be particularly so where any costs order obtained by the Commissioner could not be enforced against the taxpayers without considerable difficulty, as here.

The taxpayers, Mr and Mrs Oswal, resided in the United Arab Emirates which was not a country with which Australia had any reciprocal arrangements for the enforcement of judgments. His Honour was also satisfied that an order for security for costs in an appropriate amount would not stultify the proceedings and in light of all relevant factors, such an order was to be made.

 

[1] In tax proceedings under Pt IVA of the Taxation Administration Act 1953.

[2] Under s 56 of the Act (FCA)

[3] Fletcher v Commissioner of Taxation (1992) 37 FCR 288 (a s 44 AAT Act appeal by taxpayers/natural persons)



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