The Federal Court has dismissed a Deputy Commissioner’s application for an order that a company be wound up in insolvency essentially on the basis that the ATO had not complied with s 109X of the Corporations Act 2001 and s 28A of the Acts Interpretation Act 1901.
The statutory demand sought the payment by the taxpayer of an amount of $254,576.65, being a running balance account deficit debt. The company contended that the statutory demand was not served on it, so it followed there could not be any question of non-compliance with it and as a consequence, the Deputy Commissioner’s application should be dismissed.
The threshold question before the Court was whether the Deputy Commissioner had proved service by post of his statutory demand? The Federal Court found this was not proved. In the Court’s opinion, the obscuring of the postcode on the envelope containing the statutory demand by over stamping meant that the envelope had not been sent, by the Deputy Commissioner, by post to the registered office of the taxpayer.
(DCT, in the matter of ABW Design & Construction Pty Ltd v ABW Design & Construction Pty Ltd [2012] FCA 346, Federal Court, Logan J, 4 April 2012.)
[LTN 66, 5/4]