Fitzgerald v Deputy Commissioner of Taxation

1. [1]

   THE COURT: The only issue in this appeal is whether the primary Judge (Harrison AsJ) erred in finding that the respondent (Commissioner) validly gave written notice of penalties to the appellant in conformity with the requirements of Schedule 1 to the Taxation Administration Act 1953 (Cth) (TA Act). [1] The appellant’s contention that the Commissioner failed to give the notice in the manner permitted by s 269-50 of the TA Act is without merit and must be rejected.

2. [2]

   The Commissioner commenced proceedings in the Common Law Division claiming penalties said to be due by the appellant pursuant to s 269-15 of the TA Act. The Commissioner’s statement of claim alleged the following:

Legislation

1. [3]

   The TA Act relevantly provides as follows:

The Primary Judgment

1. [4]

   The appellant was self-represented at the trial. In substance the only defence he raised was that the notice required by s 269-25 of the TA Act (DPN Notice) as a precondition to the Commissioner commencing proceedings had not been given in conformity with s 269-50 of the TA Act. The appellant admitted that he had received the DPN about seven weeks after the Commissioner alleged that it had been posted. However, the appellant claimed that he had been prejudiced by the delay and that the evidence did not establish that notice had been given in the manner required by s 269-50.

2. [5]

   The primary Judge rejected the appellant’s argument. Her Honour accepted unchallenged evidence adduced by the Commissioner that an officer of the Australian Taxation Office (ATO) had posted the DPN on 20 March 2015 to an address which, according to records maintained by the Australian Securities and Investments Commission (ASIC), was the appellant’s place of residence or business. It followed that the DPN had been given to the appellant in accordance with s 269-50 of the TA Act. Section 269-25(4) of the TA Act had the effect that the DPN was taken to have been given to the appellant on 20 March 2015, the date it was posted.

3. [6]

   Since the Commissioner had given notice to the appellant as required by s 269-25 of the TA Act and the Commissioner had established that the appellant was liable to pay the penalties, her Honour entered judgment in favour of the Commissioner in the sum of $1,965,485.00. Her Honour observed that the appellant’s claim that he had been prejudiced by the delay in the actual receipt of the DPN (assuming his evidence to be correct) was without foundation. [3]

The appeal

1. [7]

   The appellant was self-represented on the hearing of the appeal but relied on written submissions prepared by a solicitor on his behalf. The written submissions contended that the evidence was insufficient to support the primary Judge’s finding that the DPN had been posted to the appellant’s address.

2. [8]

   At the trial, the Commissioner relied on the affidavit of Ms Mederos, an officer employed by the ATOin Melbourne. Ms Mederos, who was not required for cross-examination, gave detailed evidence based on the ATO’s records that established the appellant’s liability to pay penalties by reason of the Company’s failure to remit PAYG instalments withheld.

3. [9]

   Ms Mederos stated that she prepared the DPN, and a covering letter, copies of which were annexed to her affidavit. She then addressed the posting of the DPN as follows:

4. [10]

   Ms Mederos annexed to her affidavit a copy of the envelope prior to posting. The copy showed the stamp that had been affixed.

5. [11]

   The appellant submitted that the evidence was insufficient to establish compliance with s 269-50 of the TA Act. The defect was said to be that Ms Mederos did not state specifically that she personally attended the Australia Post mail box and placed the envelope in the locked box. However, the ordinary meaning of the paragraph from Ms Mederos’ affidavit extracted above is that she personally posted the envelope in the mailbox identified in the paragraph. The evidence was clearly sufficient to establish that the envelope was posted to the appellant’s address derived from a search of the Company in ASIC’s records.

6. [12]

   Three other matters should be noted. First, the appellant admitted receiving the DPN, although he claimed that it was given to him by a neighbour on 7 May 2015 and that he had not received it in the post.

7. [13]

   Secondly, as the primary Judge pointed out, [4] the Commissioner tendered a certificate pursuant to s 255-45 of the TA Act. This certified, among other things, that:

8. [14]

   Thirdly, Ms Mederos prepared a contemporaneous note retained in the records of the ATO which confirmed that the envelope had been posted to the appellant’s address on 20 March 2015, as Ms Mederos stated in her affidavit.

Conclusion

1. [15]

   The primary Judge correctly found that the DPN had been served in the manner required by s 269-50 of the TA Act. The appeal must therefore be dismissed. The appellant must pay the Commissioner’s costs.