Transcript of Commissioner’s Special Leave application in Multiflex available here

The transcript of the Commisisoner’s application to the High Court from the decision of the Full Federal Court in Commissioner of Taxation v Multiflex Pty Ltd is still not available on Austlii.  For those of you who are interested in what the High Court had to say, I have been able to source a copy of the transcript and it is available here.

In dismissing the application, Chief Justice French said as follows:

The Commissioner seeks special leave to appeal against the decision of the Full Federal Court upholding a decision of Jessup J to issue mandamus to the Commissioner in relation to the performance of the duty under sections 35‑5 and 35‑10.  That decision was based upon his Honour’s view that the Commissioner’s obligation to pay is not subject to an implied qualification that he has a reasonable time before making the payment to investigate the correctness of the GST return.  There is a reasonable time qualification limited to the time necessary to process the return.  The implication for which the Commissioner contended was one which, in the view of both the primary judge and the Full Court, the statute does not bear.

The obligation, when it crystallises, gives rise to a debt:  see Pape v Commissioner of Taxation, but by operation of section 105-15 of the Taxation Administration Act, the obligation to pay and the time by which a net amount must be paid is not affected by the making of an assessment.  It may be that there is a statutory lacuna which gives rise to inconvenience and to risk to the revenue.  If statutory change is necessary, and it has, in fact, been foreshadowed, that is a matter for the Parliament. 

In our opinion, the decision of the Full Federal Court is not attended with sufficient doubt to warrant the grant of special leave.  Special leave will be refused with costs 

 

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