Los Derechos Humanos una construcción desde el Contexto

Though reasonableness is required of the Commissioner in the exercise of his powers, the Court allows the Commissioner a considerable measure of discretion before it will intervene and deem a decision to be unreasonable. In the 2009 case of Krok106 the taxpayer sought a review of the Commissioner’s decision to refuse to postpone the date of a section 264(1)(b) interview on the ground of ‘Wednesbury’ unreasonableness. The taxpayer argued that the Commissioner’s refusal to defer or postpone the interview was so unreasonable that no reasonable person could have reached it; Jagot J disagreed.

The point is not whether I (or anyone else) would have made the same decision as Mr Trewin (ATO officer) in the circumstances. Review on the ground of Wednesbury unreasonableness is confined because of the distinction which must be maintained between judicial and merits review. The decision cannot be vitiated merely because it seems unfair or unreasonable in the ordinary sense of those words. That would involve a merits review disguised as a judicial review which is impermissible.107

In the 1988 case of Perron Investments108 the applicants sought a review of the Commissioner’s decision to issue section 264 notices, alleging that the demands made in the notices amounted to unreasonable demands and an improper exercise of power. Einfeld J109 dismissed the applications. On appeal the Full Court of the Federal Court110 in part reversed Einfeld J’s decision and found that the notices to the corporate appellants were invalid and were to be set aside. Hill J noted that the section 264 was an intrusion on privacy, and that therefore the notice should clearly identify the documents required to be produced.

No doubt in part because of the severe sanctions that may become applicable in the case of a failure to comply with a notice under the section, but in part also because a request to supply information, attend and give evidence or produce books and documents etc is a considerable

103 _{David Jones Finance & Investments Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 484,} 485 and 503.

104 _{See Deputy Commissioner of Taxation v Richard Walter (1994-5) 183 CLR 168.}

105 _{David Jones Finance & Investments Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 484,} 485.

106

Krok v Federal Commissioner of Taxation (2009) 77 ATR 897. 107 _{Ibid 906.}

108 _{Perron Investments Pty Ltd v Deputy Commissioner of Taxation (1988) 20 ATR 504.} 109 _Ibid.

110

Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 (Lockhart, Burchett and Hill JJ) (Fieldhouse, the lawyer for Perron Investments was issued with a section 264 notice).

intrusion upon the privacy of the individual to whom a notice is addressed, there is a requirement that a notice identify with sufficient clarity any documents which are required to be produced…111

Lockhart and Hill JJ decided that section 264(1)(b) only relates to documents in the custody or under the control of the recipient when he receives the notice, and ‘does not support a construction that requires copies to be brought into existence.’112 Both judges decided that the requirement to produce copies was ambiguous and that the ambiguity could mislead the addressee of the notice as to what was required by the notice, thus they held the notice as invalid to that extent. Lockhart and Burchett JJ (Hill J dissenting) found that the invalid parts of the notices could not be severed, thus the result was that the notices themselves were invalidated.

In One.Tel113in 2000, the applicants appealed against two notices issued by the Commissioner114 asserting that the first notice lacked clarity, and was unfair in that it required the company to accept assumptions with which it did not agree. One.Tel claimed that it was an abuse of power for the Commissioner to require answers to questions of that sort. Burchett J disagreed noting that the applicants were at liberty, in their response to the questions to point out, if either the attitude or the state of affairs was misrepresented in any of the Commissioner’s questions.115 The second notice requiring the applicants to complete schedules provided by the Commissioner, was held to be beyond the powers conferred by the legislation.

The statute says nothing of an obligation to perform an exacting task of this kind which calls not for “information” … but for an exercise in possibly approximate judgment of imperfect correspondence of an actual item with a formulation fixed by the Commissioner.116

Burchett J in concluding that the second notice was ‘wholly bad’117 warned that a notice should not be exercised in an intrusive manner.

Not only does a requirement to complete such a form go beyond the provision of information; it involves impermissible uncertainty with respect to what is sought upon pain of significant penalties, and it attempts to impose the Commissioner’s assumptions upon the company. It leaves no room for the company to answer by denying the assumptions.118

111 _{Ibid 208 (citation omitted).} 112 _{Ibid 188.}

113 _{One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548.} 114

The notices were issued under section 108 of the Sales Tax Assessment Act 1992 (Cth) - a power essentially equivalent to section 264.

115 _{One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548, 549[4].} 116 _{Ibid 561[22] (Burchett J).}

117

Ibid 562[26]. 118 _{Ibid 562[25].}

The High Court decision in the 2008 Futuris119 case highlighted how difficult it is to prove allegations that the Commissioner’s statutory powers have been exercised corruptly or with deliberated disregard to the scope of those powers. The Court120 cited the 2000 majority decision in Kordan.121

The allegation that the Commissioner, or those exercising his powers by delegation, acted other than in good faith in assessing a taxpayer to income tax is a serious allegation and not one lightly to be made. It is, thus, not particularly surprising that applications directed at setting aside assessments on the basis of absence of good faith have generally been unsuccessful. Indeed one would hope that this was and would continue to be the case. …it would be a rare case where a taxpayer will succeed in showing that an assessment has in the relevant sense been made in bad faith and should for that reason be set aside.122

The Full Federal Court held in Futuris123 that the Commissioner had applied provisions of the

ITAA ‘to facts which he knew to be untrue’ and it was that circumstance which brought the case ‘squarely’ within the description of a ‘failure to exercise bona fide the power of assessment.’124 The High Court disagreed; Kirby J warned against over reliance on arguments that the Commissioner failed to exercise his powers in good faith.

For decades, taxation decisions arising in judicial review proceedings have typically concerned the suggested tentative or provisional character of such decisions or their lack of good faith. This does not justify treating these two categories as covering the entire field of disqualifying legal (or “jurisdictional”) error for s 39B purposes. As the two nominated categories of invalidity have arisen in taxation cases for at least eighty years, there is a risk that specialists in taxation law will overlook, or ignore, the considerable subsequent advances in administrative law, in particular within judicial review.125