A taxpayer, whose assessment for the year ended 30 June 2007 was amended in 2014 to include unexplained deposits of $3.5m following an audit, has been unsuccessful in his action against the Commissioner for misfeasance in public office, abuse of process and breach of duty of good faith (ie “conscious maladministration”). Instead, the NSW Supreme Court found that the actions of the relevant ATO officers were not unauthorised or invalid, and that they did not act maliciously. It also found that the ATO officers were discharging their public duty and had not acted in bad faith. Moreover, the Court ruled that the Deputy Commissioner of Taxation was not the correct defendant in the matter as he was not vicariously liable for the actions of the ATO officers in the circumstances. Rather, the correct defendant would have been the Federal Commissioner of Taxation.
(DCT v Frangieh (No 3) [2017] NSWSC 252, NSW Supreme Court, Harrison AsJ, 20 March 2017.)