On 14 June 2017, the High Court has dismissed a taxpayer’s application for special leave to appeal against the decision of the NSW Court of Appeal in Anglo American Investments Pty Ltd v DCT [2017] NSWCA 17. The NSW Court of Appeal decision, which now stands, had unanimously dismissed the taxpayer’s application for leave to appeal a decision at first instance in which the NSW Supreme Court found that the taxpayer (and related entities) could not defend the Commissioner’s debt recovery action on the basis of claiming that the ATO had engaged in “conscious maladministration” in obtaining and using documents from the Cayman Islands for the purpose of raising the assessments that gave rise to the debt.
TT noted the following in relation to the NSW Court of Appeal decision referred to above:
In the end, the question of jurisdiction came down to the fact that the taxpayer defendant had not initiated judicial review proceedings to challenge the validity of the assessment, on the grounds that the use of the illegally obtained material was ‘conscious maladministration’. Such action might well have been open to the taxpayers, had they taken it, but in a collection matter, it was beyond the jurisdiction of the Court to consider it.
For those interested in this jurisdiction law, it’s a good read.
As a post-script, it appears that these companies might be more from the ‘Vanda Gould’ stable of clients (he is the man behind the Hua Wang Bank case mentioned above).
First instance decision – multiple parties: (1) Deputy Commissioner of Taxation v Anglo American Investments Pty Ltd; (2) Deputy Commissioner of Taxation v Golden Investments Pty Limited; (3) Deputy Commissioner of Taxation v Melbourne Insurance Co Pty Ltd; (4) Deputy Commissioner of Taxation v Morning Star Fiduciaries Pty Limited; (5) Deputy Commissioner of Taxation v Education Corporation of Australia Pty Limited; (6) Deputy Commissioner of Taxation v Malackey Holdings Pty Limited trading as Malackey Trust (14 July 2016).
[High Court decision: [2017] HCASL 131; TT article; LTN 139, 25/7/17]