Stuckey v Iliff [1960] HCA 57; (1960) 105 CLR 164 (12 August 1960)

HIGH COURT OF AUSTRALIA

STUCKEY v. ILIFF [1960] HCA 57; (1960) 105 CLR 164

Income Tax (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(2), Kitto(1), Menzies(1) and yer(1) Windeyer(1) JJ.

CATCHWORDS

Income Tax (Cth) - Prohibition of receipt of fee for preparation of returns - Constitutional validity - Whether averment in complaint prima facie evidence of matter averred - "Taxation prosecution" - What constitutes complaint "in name of" Commissioner - The Constitution (63 and 64 Vict. c. 12), s. 51 (ii), (xxxix) - Income Tax and Social Services Contribution Assessment Act 1936-1959 (Cth) ss. 222, 233, 243, 244, 251L.

HEARING

Brisbane, 1960, June 27;
Sydney, 1960, August 12. 12:8:1960
APPEAL from the Court of Petty Sessions at Brisbane, Queensland.

DECISION

August 12
The following written judgments were delivered: -
DIXON C.J., McTIERNAN, KITTO, MENZIES and WINDEYER JJ. The question of Tax and Social Services Contribution Assessment Act 1936-1959 is within the constitutional powers of the Parliament. It is a provision making it an offence for a person, not exempted under the section, to demand or receive any fee for or in relation to the preparation of any income tax return or objection or for or in relation to the transaction of any business on behalf of a taxpayer in income tax matters, unless he is a registered tax agent. Important as the question may be it is difficult to see why there should be any doubt about it. Section 51 (ii) of the Constitution confers a legislative power with respect to taxation which necessarily carries with it a power to do what is incidental thereto and in addition there is of course s. 51 (xxxix). Section 251L, although expressed perhaps with a generality which might lead to a little uncertainty as to the extent of its possible application to business done on behalf of a taxpayer, is essentially valid as an exercise of power over a subject matter incidental to taxation. If any case arises in which it is attempted to stretch the application of s. 251L (1) beyond the power it will be excluded by construction even without the aid of s. 15A of the Acts Interpretation Act 1901-1950. (at p169)

2. Whilst the appeal raised the foregoing important though not difficult question it was found also to raise some procedural questions which can hardly be regarded as important. The prosecution was by a complaint containing a charge under s. 251L (1) charging that the defendant was guilty of an offence against that provision in that not being a person exempted under the said section he did demand a fee for or in relation to the preparation of the income tax return of one Thomson for the year ended 30th June 1959, when the defendant was not a registered agent. It was objected before the magistrate that the words "for or in relation to" disclosed two offences or alternative offences and the complainant agreed to strike out the words "for or". The defendant then demanded particulars of the words "in relation to". These were not ordered. The complainant relied upon the averments contained in the words quoted from the complaint as sufficient to support the charge. The defendant called no evidence. Now the defendant supports his appeal to this Court by a complaint that he should have had particulars of the rather vague words "in relation to the preparation of the income tax return". We do not think this is a valid ground of appeal. The question depended entirely upon the discretion of the magistrate and there is no ground for thinking that he exercised his discretion improperly. (at p170)

3. However, to support the conviction it is necessary that the averment contained in the complaint should be prima facie evidence of the matter averred. If s. 243 (1) applies it does give the averment such an effect. But s. 243 (1) applies only to a taxation prosecution. A taxation prosecution is defined by s. 222 as meaning in Pt. VII "a proceeding by the Crown for the recovery of a pecuniary penalty under this Act". Section 243 is contained in Pt. VII. Section 251L is contained in Pt. VIIA which was introduced by Act No. 10 of 1943. But it is sufficiently clear that a prosecution for the offence created by s. 251L (1) is a prosecution for the recovery of a pecuniary penalty under this Act within the meaning of s. 222. If the prosecution in this case could be regarded as a proceeding by the Crown it would therefore be capable of falling within the definition which applies to s. 243. Section 233 (2) provides that where the penalty sought to be recovered does not exceed 500 pounds . . . the prosecution may be instituted in the name of the Commissioner or a Deputy Commissioner by information in a court of summary jurisdiction. Sub-section (1) of s. 233 refers to a taxation prosecution and the words in sub-s. (2) "the prosecution" mean "the taxation prosecution". The difficulty, however, is that the actual information in the present case was laid by the respondent Iliff and not by a Commissioner or Deputy Commissioner. Section 244 provides that where any taxation prosecution has been instituted by an officer in the name of the Commissioner the prosecution shall, unless the contrary is proved, be deemed to have been instituted by the authority of the Commissioner or Deputy Commissioner, as the case may be. With an evident intention of complying with this provision the complaint was drawn as a complaint of Iliff, an officer of the Taxation Branch of the Department of the Treasury, in the name of and for and on behalf of the Deputy Commissioner of Taxation under the Income Tax and Social Services Contribution Assessment Act 1936-1959 for the State of Queensland. But does this comply with the provisions so as to bring the complaint within s. 233 and s. 243 ? It is Iliff's complaint. When he says that he makes it in the name of the Deputy Commissioner he must mean that he makes it for him. For a mere inspection of the complaint shows that it is not in the name of the Commissioner. Apparently the formula "in the name of and for and on behalf of" is used simply to mean "on behalf of". At all events it is not in his name. Indeed the proceedings have been headed as between the appellant Stuckey and the respondent Iliff. Unfortunately the form adopted does not comply with s. 244 (1). It becomes the complaint of the officer and not the complaint of the Commissioner or a Deputy Commissioner notwithstanding that such a complaint may be instituted by the officer under the authority of the Commissioner or Deputy Commissioner. The distinction may be regarded as refined and of little practical significance, but the effect is that, although the complaint states that it is a complaint in the name of and for and on behalf of the Deputy Commissioner, it is the complaint of Iliff and unfortunately, unless it falls within s. 244, it cannot fall within s. 243 because to fall within s. 243 it must be a taxation prosecution, and to be a taxation prosecution it must fall within s. 222. It follows that the complainant could not avail himself of the averment provisions of s. 243 to support a complaint in the form which he adopted. Perhaps it may be the good fortune of the appellant but on the state of the record he is entitled to the dismissal of the complaint. Accordingly the appeal should be allowed and the conviction quashed. In lieu of the conviction the complaint should be dismissed. (at p171)

FULLAGAR J. I am not satisfied that s. 243 of the Assessment Act (the "averment" section) applies to proceedings under s. 251L of the Act. Subject to the reservation of this point, on which I express no opinion, I agree with the judgment handed down by the Chief Justice, which I have had the advantage of reading. (at p171)

2. The provisions of Pt. VII of the Act are notoriously confused and difficult, and it would, I think, be a good thing if they were subjected to revision by the Parliament in the near future. (at p171)

ORDER

Appeal allowed. Conviction set aside and complaint dismissed.

The respondent to pay to the appellant half his costs of the appeal.