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Published on 22 February 2017

The High Court of Australia handed down its decision in Commissioner of State Revenue v ACN 005 057 349 Pty Ltd [2017] HCA 6 on 8 February 2017.

The taxpayer requested that the Commissioner issue amended land tax assessments from 1990-2002 because it believed the original assessments contained a duplicated property error. The Commissioner declined to amended the assessments on the basis that he did not have the statutory authority to issue the consequential refund under the Land Tax Act 1958 (LTA). The taxpayer commenced two proceedings. The first sought to compel the Commissioner to issue the amended assessments and refund the excess amount with interest; and the second sought restitution of the excess amount of tax, with interest.

The primary judge dismissed the first proceeding and, in the second, entered judgment for the Commissioner.

The Court of Appeal allowed each appeal holding that the Commissioner is required to ensure the completeness and accuracy of tax assessments and has a duty under s 19 of the LTA to amend the assessments and refund the excess amount. The Court of Appeal took the view that a failure by the Commissioner to do so constituted conscious maladministration. The Court of Appeal made orders directing the Commissioner to amend the assessments and refund the excess amount.  

The High Court unanimously allowed the Commissioner’s appeals. It confirmed that the Commissioner was not under a duty to amend the assessments, and the processes for challenging an assessment or obtaining a refund are exclusively contained in the statutory code. Further, the LTA specifically prohibits restitutionary proceedings of this kind being brought outside of the statutory regime, and any other finding would render the objection and refund regimes otiose.

The High Court held there was no basis for a finding of conscious maladministration by the Court of Appeal, and neither the Commissioner nor the Court is at liberty to disregard the express provisions of the legislation, including the absence of any statutory authority enabling the Commissioner to make a refund out of public funds.    

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