The Federal Court has deferred a winding up application until the taxpayer could have its case on objection decisions decided before the AAT.
A Deputy Commissioner of Taxation filed on 4 November 2011 an application under s 459P of the Corporations Act 2001 for the winding up of the taxpayer company on the ground of insolvency. The company accepted that it was insolvent (it owed around $145,000 in unpaid BAS amounts, penalties and GIC) but submitted that the application to wind it up should be adjourned pending the outcome of its proceedings under Pt IVC of the Taxation Administration Act 1953 in the AAT. The company submitted it was insolvent only by reason of the tax debt, which it could not challenge in the present proceeding.
The Court said it accepted that, in the present case, the only or substantial effect of refusing the application for an adjournment would be that control of the company would pass to a liquidator. It said a liquidator may choose not to pursue the Pt IVC review which the Court held to be reasonably arguable on the untested material before it. The Court granted an adjournment to 17 August 2012 with a view to the decision in the Pt IVC proceedings in the Tribunal being known by that time. It also adjourned the Deputy Commissioner’s winding up proceedings under s 459P to 9.30 am on 17 August 2012.
(DCT v Bayconnection Property Developments Pty Limited [2012] FCA 363, Federal Court, Robertson J, 16 April 2012.)
[LTN 71, 16/4]