Federal Commissioner of Taxation v West Australian Trustee Executor & Agency Co Ltd [1929] HCA 20; (1929) 43 CLR 20 (17 September 1929)

HIGH COURT OF AUSTRALIA

The Federal Commissioner of Taxation Appellant; and The West Australian Trustee Executor and Agency Company Limited Respondent.

H C of A

17 September 1929

Knox C.J., Rich and Dixon JJ.

J. L. Walker, for the appellant.

Stawell K.C. (with him Forman), for the respondent,

J. L. Walker.

Counsel for the respondent

The following judgments were delivered:—

Knox C.J.

I think that this point is a good one and that the appeal is incompetent.

The meaning of reg. 45 seems to me to be that the Commissioner is put on his election to take one course or the other within thirty days after receiving notice of the decision of the Board of Review: he has either to appeal or give effect to its decision. If the decision of the Board is expressed in the form of an amendment of the Commissioner's assessment, there is nothing for the Commissioner to do, in order to give effect to it, but repay the amount overpaid by the taxpayer. If, on the other hand, the decision of the Board does not amount to an assessment, it is simply a decision to which the Commissioner if he does not appeal is bound to give effect, as he has done in this case, by issuing an amended assessment based on the decision. Having done that, he cannot turn round and adopt the other course of appealing. The only assessment now in existence is the amended assessment, and, that having been issued by the Commissioner, he has no right of appeal against it. The appeal is, therefore, incompetent.

Rich J.

I agree that on any view of the matter the appeal is incompetent.

Dixon J.

I agree. I should like to add that I do not think the Board of Review has sufficiently appreciated the effect of sec. 44 (1) and sec. 51 (4), which appear to cast upon the Board the duty or function of making assessments, determinations and decisions in lieu of the assessments, the determinations and the decisions of the Commissioner which it reviews. If the Act means, as at present I am disposed to think it does, that the functions of the Commissioner are again to be performed by the Board when a taxpayer has requested the Commissioner to refer his decision upon the taxpayer's objections to the Board, then reg. 45 ought not to be construed as requiring the Commissioner to make a reassessment or an alteration in order to record and give formal efficacy to the Board's pronouncement. The Board is authorized by the Act to give formal shape and validity to its own decisions. Upon this view reg. 45 should be considered as requiring that practical effect should be given to the Board's decisions. Its operation would resemble that of sec. 52 (2). If this be the correct view of the regulation, the Commissioner has gratuitously altered the assessment, or gratuitously made an amended assessment and has thus superseded the act of the Board from which he desires to appeal. He cannot appeal from his own act, and we could not set aside or vary his amended assessment even if this appeal were permitted. It is superimposed upon the decision of the Board, and it is only with that we could deal on this appeal. It is not necessary, however, to decide whether this is the correct construction of the Act and regulation, because upon the alternative constructions the appeal is incompetent. If sec. 51 (6) and sec. 53 enable an appeal to be made within the time limited by Rules of Court, and there is no power to impose a limitation by regulation, then, unless and until Rules of Court were made the appeal might be brought within a reasonable time. But, having regard to the dates given to us just now by Mr. Stawell and Mr. Walker, I think a reasonable time elapsed before notice of appeal was given. If reg. 45 means to give an election either to appeal within thirty days or to give effect to the Board's decision, then the Commissioner elected not to appeal. These appear to me to be the interpretation of the statutory provisions and the regulation which are reasonably open, and upon each of them the Commissioner lost his appeal from the Board's decision, if a completed decision it be. I therefore think the appeal is incompetent and should be struck out or dismissed.

Appeal struck out.

Solicitor for the appellant, J. L. Walker, Crown Solicitor for Western Australia.

Solicitors for the respondent, Stawell, Hardwick & Forman.