In Diggelen & Diggelen [2014] FamCAFC (1 September 2014) the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) considered Johnston J’s decision to treat a $459,199 payment that the husband had received from his employer for “accrued annual leave, long service leave, severance payment and ETP” at [25] as having a value of $300,000. Johnson J said at [27]:

“…it was submitted [for] the wife that there should be added back…the $469,199 (sic) which [the husband] received as his redundancy payment…To do so would ignore taxation implications. It must be the case that some of this payment was on account of leave. There was no suggestion that the money paid was tax free. This is a most unsatisfactory aspect of the case. Doing the best I can in difficult circumstances I propose to allow $300,000 of this payment to be added back to the pool of property”.

In allowing the case for re-hearing The Full Court said at [33]

“In written submissions on the appeal…the wife argued that the Full Court…could consider it “common knowledge”, that employers were obliged to deduct tax from redundancy payment before payment to employees…”

The Full Court further said at [34]

“It is unnecessary for us to determine whether such information is “common knowledge”…This is because there was no evidentiary basis on which his Honour could have found, as he did, that some part of the redundancy payment received by the husband was subject to tax in his hands and ought to be brought into account at a lesser amount than that received.  We also observe that his Honour’s conclusion is at odds with…ss12-85 of Schedule 1 Taxation Administration Act 1953 (Cth) by reason of which the husband’s employer was obliged to retain PAYG payments on the redundancy/termination of employment payment”.

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