COMMISSIONER OF TAXATION V PARK [2012] FCAFC 122 (31 AUGUST 2012)

In brief

Recently, the Full Court of the Federal Court in Queensland held that the Commissioner of Taxation (“ATO”) was entitled to receive certain moneys in priority to claims by a second mortgagee pursuant to a garnishee notice (Section 260-5 of Schedule 1 of the Taxation Administrations Act 1953 (Cth)) which it served on the purchasers.

This case demonstrates that a second mortgagee could lose its priority (in terms of receiving full payment of all moneys payable to it under the terms of its mortgage) when it allows a mortgagor to sell the mortgaged property; especially when the mortgagor owes moneys to the ATO.