Norper Investments Pty. Limited v. Deputy Federal Commissioner of Taxation.

Judges:
Needham J

Court:
Supreme Court of New South Wales

Judgment date: Judgment handed down 22 March 1977.

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Needham J.: The company has served a subpoena upon the Deputy Commissioner asking for the whole of the file of the company for the year ended 30th June, 1972, together with all documents filed since that date. Counsel for the Deputy Commissioner puts two objections to the subpoena, one being that it is too broad because the documents filed

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ATC 4212

since that date are not specified or identified and, secondly, an objection under sec. 16(3) of the Income Tax Assessment Act.

I think there is no substance in the first objection. I think the proper interpretation of the subpoena is that the company is requiring production of documents relating to the company filed by or on behalf of it since its return or since it filed documents relevant to the return for the year ended 30th June, 1972.

The second objection, as I said, is based upon sec. 16(3) of the Income Tax Assessment Act which provides:

``An officer shall not be required to produce in court any return, assessment or notice of assessment or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duty as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to income tax.''

It is suggested in the objection that the hearing of a petition for the winding-up of the company is not a procedure engaged in for the purpose of carrying into effect the provisions of the Act. In my opinion the Commissioner in recovering tax is acting for the purpose of carrying into effect the provisions of the Act. It is suggested that the issue of a petition for the winding-up of a company upon which an assessment has been served is not collecting or attempting to collect tax.

In my opinion the issue of the process by the Commissioner, while it is a process available to him under the Companies Act, is an act done by him for the purpose of carrying into effect a duty imposed upon him under the Act of collecting taxation as it is assessed. I think it would be quite unreal to say that he was, in issuing a petition, not performing that duty which is imposed upon him under the Act.

Therefore, I reject the objections to the subpoena.