N698

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE CHIEF COLLECTOR OF TAXES

V

LUCKY STAR CORDIALS PTY LTD 
(FORMERLY LAE CORDIAL FACTORY PTY LTD)

Waigani
Woods J

25 November 1988
2 December 1988

INCOME TAX - Recovery of tax - Writ of summons pleading notice of assessment - Notice to plead facts given - Writ sufficient pleading - Notice of assessment conclusive - Income Tax Act, s 239.

PRACTICE AND PROCEDURE - Pleading - Notice to plead facts - Writ for recovery of income tax - Writ sufficient pleading - Notice of assessment conclusive - Income Tax Act, s 239.

Held

Where the Chief Collector of Taxes issues a writ of summons for unpaid income tax and pleads the notices of assessment duly made under the Income Tax Act, because s 239 of that Act makes the assessment conclusive evidence of the due making of the assessment and of the amount thereof, he has pleaded sufficient facts to support his claim and need not respond to a notice to plead facts.

Chief Collector of Taxes v T A Field Pty Ltd [1975] PNGLR 144; (1975) 6 ATR 38, applied.

Cases Cited

Chief Collector of Taxes v New Britain Fishing Industries Pty Ltd (September 1982, unreported, but noted in PNG Tax Cases 45,010 (CCH)).
Chief Collector of Taxes v T A Field Pty Ltd [1975] PNGLR 144; (1975) 6 ATR 38.

Summons

This was a summons seeking to have a writ of summons set aside for failure to plead facts.

Counsel

J Weigall, for the plaintiff.
C Karingu, for the defendant.
Cur adv vult

2 December 1988

WOODS J: The Collector of Taxes has issued a writ of summons against the defendant for unpaid income tax and in the statement of claim refers to certain notices of assessment as being the basis for the claim.

The defendant filed a notice of intention to defend and a notice to plead facts. The plaintiff declined to supply facts and referred the defendant to a relevant provision of the Income Tax Act. The defendant is now applying to have the summons dismissed for failure to plead facts.

The law is quite clear that a plaintiff must plead all of the facts on which he relies for his claim. In this case the plaintiff has pleaded the notices of assessment duly issued under the Income Tax Act. Section 239 of the Income Tax Act clearly provides that a copy of a notice of assessment is conclusive evidence of the due making of the assessment and (except in proceedings on appeal against the assessment) that the amount and all the particulars of the assessment are correct.

I find that the plaintiff has pleaded sufficient facts and is not required to plead any further facts. I refer to the words of Raine J in Chief Collector of Taxes v T A Field Pty Ltd [1975] PNGLR 144 at 147; (1975) 6 ATR 38 at 40, when he said, "... the Chief Collector is placed in a more privileged position than is the ordinary plaintiff. It is not particularly surprising that the Legislature has both here and in Australia so provided’’.

I refer to the case Chief Collector of Taxes v New Britain Fishing Industries Pty Ltd (September 1982, unreported, but noted in PNG Tax Cases 45,010 (CCH)) where the above case was quoted and the law generally discussed and it was made quite clear that in proceedings for recovery of tax the assessment is conclusive and the tax payer is not entitled to go behind it for any purpose.

I dismiss the application.

I order the defendant to pay the plaintiff’s costs of this application.

Application dismissed

_______________________

Lawyer for the plaintiff: State Solicitor.
Lawyers for the defendant: Karingu Sitapai Kemaken & Associates.