The NSW Court of Appeal has refused to grant leave to appeal against a decision refusing to set aside a statutory demand by the ATO for estimates of unpaid PAYG withholding amounts.
The statutory demand related to an amount of just over $4.94m, which largely comprised estimates of unpaid PAYG withholding amounts. Priority Matters applied under s 459G of the Corporations Act 2001 (Cth) to have it set aside, but the primary judge refused to do so (although Her Honour did reduce the amount to just over $4.67m).
The primary issue for the Court of Appeal was whether an affidavit sworn by the sole director of Priority Matters (Ms Janette Lee), in which she deposed that the company did not pay any employee wages in any of the relevant financial years (2010 to 2015), verified facts sufficient to prove that the underlying liability (the unpaid PAYG withholding amounts) never existed. If so, then the estimate would be revoked under s 268-40 of Sch 1 to the TAA.
The Court did not consider that Ms Lee's affidavit satisfied the relevant requirements in s 268-40. The affidavit focused only on the issue of whether Priority Matters had paid wages during the relevant period and was entirely silent on the question whether it paid any individual (as an employee) "salary, commission, bonuses or allowances". This was a significant omission. (Priority Matters Pty Ltd v DCT [2022] NSWCA 208, NSW Court of Appeal, Ward P, Macfarlan JA and Griffiths AJA, 19 October 2022.)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2022/208.html
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