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The taxpayers had objected to assessments to duty issued by the Commissioner. Before their determination, the taxpayers requested the Commissioner treat them as appeals to be set down for hearing in the Supreme Court pursuant to s106(1)(b) of the Taxation Administration Act 1997 (TAA). The Commissioner complied with this request.

Once the notices of determinations were finalised, and after the matters had already been set down, the taxpayers requested that the matters be referred to the Victorian and Civil Administrative Tribunal (the Tribunal) for review under s106(1)(a) of the TAA. The Commissioner declined to do so on the basis that the election under s106 can only be exercised once.

The taxpayers applied to the Supreme Court for a direction that the Commissioner make the referral to the Tribunal.

On 22 October 2021, the Supreme Court handed down judgment in favour of the Commissioner.

The taxpayers filed an application for leave to appeal the decision to the Court of Appeal.

On 24 August 2022, the Court of Appeal granted the taxpayers’ application for leave to appeal, but then dismissed the appeal, holding that s106(1) of the TAA does not confer upon a taxpayer 2 distinct entitlements to pursue an appeal to the Supreme Court and a review in the Tribunal in relation to an objection. Rather, once a taxpayer has elected a forum in which to pursue an appeal or review, s106(1) of the TAA, construed by reference to its text, context and purpose, is spent and s106(3) of the TAA does not permit or require the Commissioner to refer a matter concerning the same objection to a second forum.

The taxpayer applied for special leave to appeal the Court of Appeal’s decision to the High Court.


On 15 December 2022, the High Court dismissed the taxpayers’ application for special leave with costs awarded to the Commissioner, holding that the taxpayers’ application concerned the interpretation of a procedural provision in a Victorian taxing statute and raised no question of interpretive principle. Further, the Court of Appeal’s decision was not attended by doubt.

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