Mark Robertson KC (with JW Fickling) appeared for the Applicant, instructed by Murcia Pestell Hillard.
This case concerns an interlocutory application brought by the applicant, Skycorp, for orders that the respondent Commissioner’s responsive appeal statement be struck out or removed on the grounds of abuse of process, and that the Commissioner file and serve a substitute appeal statement. It takes place in the context of an appeal (listed for hearing in February 2026) under s 14ZZ of the Taxation Administration Act 1953 (Cth) (‘TAA’) by Skycorp, in respect of the Commissioner’s objection decision regarding alleged underclaimed deductions available under Division 43 of the Income Tax Assessment Act 1997 (Cth) (‘ITAA’) for construction expenditure.
The basis of Skycorp’s interlocutory application was that the Commissioner cannot require it, as a taxpayer, to advance a case on appeal that demonstrates the appropriateness of the extent of Division 43 ITAA deductions allowed by the Commissioner. To support this contention, Skycorp made submissions on the constitutional invalidity of an amendment to s 14ZZO TAA, which imposed a requirement on the taxpayer who brings an appeal under s 14ZZ TAA in respect of a decision concerning an assessment to prove what the assessment should have been.
The interlocutory application was dismissed, principally because the terms of the Commissioner’s responsive appeal statement requiring Skycorp to prove the insufficiency of the deductions under Division 43 ITAA did not involve a change in his case that would be unfair, as a matter of case management, to allow. Further, it was held that Skycorp’s claim regarding the constitutionality of the amendment to s 14ZZO TAA is a matter for the final hearing, not an interlocutory application.
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