Deputy Commissioner of Taxation vs. Quach

Australia

07.08.2020

Direct Taxation

Production of notice of assessment is conclusive evidence that the assessment is properly made

An application is made by the Plaintiff, the Deputy Commissioner of Taxation, for judgment to be entered against the defendant pursuant to the Rules of the Supreme Court, 1971 (WA). The Plaintiff seeks judgment as against the Defendant in relation to alleged tax related liabilities, together with an order for costs.

The Plaintiff contends that, an amount of a 'tax-related liability' that is a debt due and payable is a debt due to the Commonwealth of Australia and is payable to the Commissioner of Taxation. The Plaintiff is a Deputy Commission of Taxation and says that, in her official name, she is entitled to sue to recover debts due to the Commonwealth of Australia and payable to the Commissioner of Taxation pursuant to the Taxation Administration Act, 1953.

By the proceeding, the Plaintiff seeks to recover from the defendant 'tax-related liability', in particular, income tax; failure to lodge on time penalties; excess superannuation contributions tax; and general interest charges pursuant to the Income Tax Assessment Act, 1936 (Cth), the Income Tax Assessment Act, 1997 (Cth), and the Taxation Administration Act.

For the purposes of the Plaintiff’s application for summary judgment, the certificates are prima facie evidence that as at 21 July 2020, the amount of $854,261.57 was a debt due and payable by the Defendant to the Plaintiff in respect of the claimed tax related liabilities.

In addition to the prima facie evidentiary provisions, the Plaintiff also relies on the conclusive evidence provision in the Section 350-10(1) item 2 of schedule 1 of Taxation Administration Act. Pursuant to that provision, the production of a notice of assessment is conclusive evidence that, the assessment is properly made and, except in proceedings under the Taxation Administration Act pt IVC, that the amounts and particulars of the assessment are correct. The Plaintiff has satisfied the preconditions for exercise of the power to order summary judgment and has established a prima facie entitlement to judgment. The affidavits relied upon do verify the essential elements of the cause of action on which the application for summary judgment is based.

An evidential burden is then cast on the Defendant to show why judgment ought not to be given for the Plaintiff. No materials were filed on behalf of the Defendant in opposition to the application. The Defendant has failed to demonstrate that, there is an arguable defence or other reason for trial. The defendant has no defence to the claim and that the plaintiff is entitled to judgment. Judgment will be entered for the Plaintiff against the Defendant in the amount of $854,261.57.

Tags : Debt dues Payment Recovery

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