In Deputy Commissioner of Taxation v Zeqaj [2019] VSC 194 the Court states
defendant has filed four affidavits. They were affirmed on 17 August 2018, 17 September 2018, 22 October 2018 and 4 March 2019. The last of those affidavits was after the Court’s determination on the question of personal service of the writ. Allowances have to be made for a litigant in person, but I am afraid to say much of the discourse in the affidavits is convoluted and difficult to comprehend. It is mostly a vehement denouncement of the ATO. But he has also ventured into legal matters to which the Deputy Commissioner has had to respond, and with which the Court must deal.
The defendant’s first affidavit has 170 paragraphs, some of which concern the question of service. But, apart from that, it asserts the following: (a) the Supreme Court of Victoria does not have the jurisdiction to hear this matter as it relates to a breach of the Constitution by the Australian Taxation Office or the Federal Government; (b) he owes nothing, and in fact, the Federal Government and the Australian Taxation Office owes him money and ‘the ATO’s attempts to bully, threaten and harass me only strengthens my resolve’; (c) ‘the Constitution does not recognise the Australian Taxation Office or its commissioner’; (d) the imposition of capital gains tax and s 14ZZK of the Taxation Administration Act 1953 are not constitutionally valid and violate Human Rights; and (e) the ATO had not only acted in a way which was not constitutionally valid, but acted contrary to personal rights under the Magna Carta that ‘no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land’.
The second affidavit is for the most part concerned with the question of service of the writ and an explanation for his delay. It is only paragraph 9 and 10 of that affidavit which asserts a defence that first, the Commonwealth Constitution does not recognise the Australian Taxation Office or the Deputy Commissioner and that the ATO does not represent the Australian government. I distil the contention to be that the ATO or the Deputy Commissioner is not identified or recognised in the Constitution as authorised to assess or collect tax. Secondly, paragraph 10 of that affidavit states that: ‘... The relevant tax law pointed out in my matter was not Constitutionally valid to begin with’. His taxable income included capital gains. He contends that a capital gain is not income, and therefore a capital gains tax is not an income tax, and only an income tax is within the legislative competence of the Parliament under s 51(ii) of the Constitution. He believes the Parliament’s power under that section to make laws ‘with respect to taxation’ is confined to income taxation, even though the words of s 51(ii) do not say that. Nor is it said elsewhere in the Constitution.
The third affidavit is confined to the question of personal service and can be put to one side.
In the fourth affidavit, the defendant has, by organisation, stipulated ‘My Defense Against The Writ’. In it he also contends the government and the ATO owes him $298,395,355.63 of which $200,000,000 is for his ‘Pain , Suffering and Potential Future Losses’ and ‘Interest Defrauded’ of $98,350,636.95. This affidavit contains what has, on testing in Court, emerged as his real personal grievance in this case against the ATO which has spawned the farrago of defences. The grievance is twofold.
First, he is resentful that the ATO took out garnishee orders and freezing type orders on his bank accounts which he regards as having deprived him of basic human rights (including the right to pay for the cost of living) and in effect preventing him for paying for the necessities of life. That I think explains the reference to Magna Carta . The second grievance concerns what I will call an official ‘information swap’ between Victoria Police and the ATO.
