Published tax cases June 2024
It was a busy end to the financial year in the courts and AAT with 19 tax decisions being published in June, of which, 9 were first instance Federal Court decisions and 7 were AAT decisions.
Notable decisions were:
- Godolphin – losing its claim for primary production exemption from NSW land tax in the High Court
- Pepsico – winning its fight against royalty withholding tax in the Full Federal Court and the Commissioner losing his Part IVA appeal
- Ierna – a win for the taxpayer against Part IVA assessments and indemnity costs ordered (by consent)
- Kilgour – highlighting legal errors in the Commissioner’s market valuation guidelines
- Quy – errors of law found in AAT decision concerning individual tax residency
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High Court
Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue [2024] HCA 20
5 June 2024 | Gageler CJ, Gordon, Edelman, Steward and Jagot JJ
Land tax – Exemption – Statutory construction – Primary production exemption – Where s 10AA(1) of Land Tax Management Act 1956 (NSW) (“Land Tax Act”) exempts from land tax rural land if used for primary production – Where s 10AA(3)(b) provides “land used for primary production” means land dominant use of which is for maintenance of animals for purpose of selling them or their natural increase or bodily produce – Whether requirement of “dominant use” of land applied both to “maintenance of animals” and also to “purpose of sale” in s 10AA(3)(b) of Land Tax Act – Whether “dominant” confined to required use of land only or “dominant” qualifies composite “use-for-a-purpose” phrase.
Full decision here
Full Federal Court
Commissioner of Taxation v Michael John Hayes Trading Pty Ltd as trustee of the MJH Trading Trust [2024] FCAFC 80
14 June 2024 | Bromwich, Thawley and Hespe JJ
TAXATION – whether Administrative Appeals Tribunal erred in its construction of s 207-155 of the Income Tax Assessment Act 1997 (Cth) – alleged dividend stripping operation – Tribunal erred in its construction of s 207-155 – matter remitted to the Tribunal for redetermination according to law
Full decision here
PepsiCo, Inc v Commissioner of Taxation [2024] FCAFC 86
26 June 2024 | Perram, Colvin and Jackman JJ
TAXATION – royalty withholding tax – where non-resident taxpayers entered into exclusive bottling agreements (‘EBAs’) with an Australian company (‘Bottler’) for the bottling and sale of beverages in Australia – where EBAs provided for sale of concentrate by the taxpayers or their nominated seller to the Bottler – where EBAs included a licence of the taxpayers’ trademarks and other intellectual property but did not provide for a royalty – whether the taxpayers were liable to pay royalty withholding tax on part of the payments made by the Bottler under the EBAs – whether payments made by the Bottler were consideration for the right to use intellectual property – consideration of Davis Investments Pty Ltd v Commissioner of Stamp Duties (NSW) [1958] HCA 22; (1958) 100 CLR 392, Chief Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3; 221 CLR 496 and Commissioner of State Revenue (Vic) v Lend Lease Development Pty Ltd [2014] HCA 51; 254 CLR 142 – whether payments made by the Bottler were income derived by the taxpayers
TAXATION – diverted profits tax – consideration of s 177J of Income Tax Assessment Act 1936 (Cth) – whether the taxpayers obtained a tax benefit in connection with a scheme – commercial and economic substance of the scheme and alternative postulates – results or consequences for the taxpayers of the scheme and alternative postulates – whether such postulates were reasonable alternatives to the scheme – whether the taxpayers entered into or carried out the scheme for a principal purpose of obtaining a tax benefit and reducing foreign tax liabilities
Full decision here
Federal Court:
Wang v Commissioner of Taxation [2024] FCA 585
4 June 2024 | Perry J
TAXATION – where the Administrative Appeals Tribunal affirmed the Commissioner of Taxation’s decision not to allow the applicant’s objection to a default assessment issued pursuant to s 167 of the Income Tax Assessment Act 1936 (Cth) – where the default assessment was made applying the asset betterment methodology – whether the applicant could satisfy the burden of proof in s 14ZZK(b)(I) of the Taxation Administration Act 1953 (Cth) by establishing errors in the default assessment – whether Tribunal erred in applying the “all or nothing” approach – no error in the Tribunal’s approach
ADMINISTRATIVE LAW – where the applicant was not cross-examined by the Commissioner on various issues and no contrary evidence was led on those issues– whether Tribunal erred in not accepting the applicant’s evidence allegedly in breach of the rule in Browne v Dunn (1893) 6 R 67 – where the applicant had adequate notice of the Commissioner’s position
ADMINISTRATIVE LAW – whether Tribunal failed to give adequate reasons as required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether Tribunal erred in failing to give due weight to corroborative evidence – whether question of law raised by alleged failure by the Tribunal to receive documents into evidence – where alleged errors based on applicant’s erroneous approach to the burden of proof – where errors invited merits review – application dismissed
Full decision here
Ierna v Commissioner of Taxation [2024] FCA 592
6 June 2024 | Logan J
INCOME TAX – where the applicants appeal against objection decisions made by the respondent (Commissioner) in relation to assessments for the 2016 income year made under the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) – where the applicants comprise various entities from the City Beach group and its controllers, Messrs Ierna and Hicks – where the City Beach business was conducted through a trust (CBT), units in which were pre-capital gains tax assets – where there were inter-group Division 7A of the ITAA 1936 loans (Division 7A loans) – where the applicants effected a restructure in 2016 that allegedly resulted in either certain payments that ought to have been treated as dividends pursuant to s 45B of ITAA 1936 or, alternatively, a tax benefit arising under a “scheme” pursuant to Pt IVA of ITAA 1936 – where the applicants transferred the units of the CBT to a new entity which then entered into deeds of assignment that effectively extinguished the Division 7A loans – where the applicants contended that the restructure was effected to eliminate the adverse commercial impacts of the Division 7A loans and was the only commercially viable solution in the circumstances – where the Commissioner contended that the applicants had in fact realised $52 million in value of the CBT units and that their income should be assessed as such – whether there was a genuine commercial purpose for the transaction – whether the applicants had in fact realised $52 million of the CBT units – appeals allowed – objection decision set aside and in lieu objections allowed in full
Full decision here
Ierna v Commissioner of Taxation (No 2) [2024] FCA 670
17 June 2024 | Logan J
COSTS – where the applicants were wholly successful in the tax appeals – where the applicant had made what were said to be offers of compromise under the Federal Court Rules 2011 – where the respondent Commissioner consented to the awarding of indemnity costs against him from the date of the so-called offers of compromise – where offers of compromise were merely for the Commissioner to compromise any right of recovery under the amended assessments (as opposed to putting forward genuine alternative bases for the assessments) and the tax appeals concerned novel provisions – whether Court should award indemnity costs on the basis of the consent of legally represented parties – whether determination offers any precedential value – orders for indemnity costs as agreed made
Full decision here
Quy v Commissioner of Taxation (No 2) [2024] FCA 682
17 June 2024 | Logan J
PRACTICE AND PROCEDURE – where the applicant applies for an adjournment of a final hearing listed for one day in less than two weeks’ time – where the taxation appeal from the Administrative Appeals Tribunal (Tribunal) concerns whether there was an error of law in the Tribunal’s application of the residency test to the applicant – where the applicant initially retained solicitors, then became self-represented, before recently instructing new solicitors – whether there is an opportunity cost to the administration of justice if adjournment granted – adjournment application refused
Full decision here
GSM Pty Ltd v Commissioner of Taxation [2024] FCA 653
18 June 2024 | Thawley J
COSTS – apportionment in light of mixed success – applicant to pay 90% of respondent’s costs
Full decision here
Hyder v Commissioner of Taxation [2024] FCA 654
18 June 2024 | Thawley J
COSTS – applications for variations of costs orders – where applicants assert that proceedings were commenced by “unlawful” claims made by the respondent – where Calderbank offers related to multiple proceedings – no unreasonable rejection of offer – no issue of principle
Full decision here
Mesha Feet Pty Ltd v Allen acting as Deputy Commissioner of Taxation [2024] FCA 680
24 June 2024 | Button J
CORPORATIONS – application for review of a decision of a Registrar pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) – where originating process seeks to set aside a statutory demand issued to the Plaintiff by the Defendant – where Plaintiff claims to have discharged its taxation liabilities by a “Promissory Note” and a “Bill of Exchange” –where Registrar dismissed the originating process – where Plaintiff’s claims are unmeritorious and misconceived – where no “genuine dispute” arises as to the existence or amount of the debt the subject of the statutory demand – application dismissed with costs
Full decision here
Kilgour v Commissioner of Taxation [2024] FCA 687
26 June 2024 | Logan J
TAXATION – where the applicants appeal from objection decisions made by the respondent Commissioner concerning the inclusion in their taxable income of the capital gain proceeds from the sale of shares in a company, Punters Paradise Pty Ltd (Punters), to News Corp Investments Australia Pty Ltd (News Corp Investments) – where there was no formal relationship, in terms of shareholding, directorships or control, between Punters and News Corp Investments or any other News Corp related entities (News Corp) – where the applicants contended that there was “internal championing” for the purchase of Punters within News Corp that caused a price higher than “market value” to be paid and that, as a result, the parties did not deal with each other at arm’s length – where the ultimate approval for the purchase of Punters was made by a head office in New York that was removed from News Corp’s Australian operations – whether the applicants were at arm’s length to News Corp Investments within the meaning of s 116-30 of the Income Tax Assessment Act 1997 (Cth) – appeal dismissed
TAXATION – where the applicants contended that News Corp included “special value” in its purchase price for Punters that resulted in a price that was not “market value” – where the applicants led expert evidence that excluded this “special value” from the valuations of the Punters shares on the basis of valuation guidelines issued by the respondent Commissioner – whether “special value” forms part of the “market value” of an asset – whether the Commissioner’s valuation guidelines misstated the law
Full decision here
Quy v Commissioner of Taxation (No 3) [2024] FCA 726
28 June 2024 | Logan J
INCOME TAX – where applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm an objection decision of the respondent Commissioner of Taxation concerning whether the applicant, for income tax purposes under the Income Tax Assessment Act 1936 (Cth), was a resident of Australia, had a domicile of choice outside of Australia or a permanent place of abode outside of Australia – where the applicant was employed for five years in Dubai in the United Arab Emirates (UAE) and spent a large majority of each relevant income year in Dubai – where the applicant’s wife and daughters resided in Beldon, Western Australia during the relevant income years – where the Tribunal found that the applicant has a resident of Australia and that he did not have a domicile of choice in the UAE or a permanent place of abode there – whether the Tribunal committed an error of law – whether the Tribunal conflated concepts related to determining domicile with residency according to ordinary concepts – whether the Tribunal considered the wrong intention when assessing both the residency and permanent place of abode of the applicant – appeal allowed
ADMINISTRATIVE LAW – where Tribunal has made findings concerning the applicant’s residency and permanent place of abode – whether errors in relation to those concepts involve a question of law – whether, both in its stating of the law and in the course of its consideration, the Tribunal applying the wrong legal test is a question of law – whether proceedings should be remitted back to the Tribunal to be determined according to law – appeal allowed and proceedings remitted
Full decision here
Administrative Appeals Tribunal:
Moloney and Commissioner of Taxation [2024] AATA 1483
7 June 2024 | Deputy President I R Molloy
TAXATION – INCOME TAX – objections to amended income tax assessments – capital gains tax – whether small business concessions apply – whether the market value substitution rule applies – parties dealing at arm’s length – whether maximum net asset value test satisfied – decisions under review set aside – decision allowing objections substituted
Full decision here
Doery and Commissioner of Taxation [2024] AATA 1493
7 June 2024 | Senior Member D Benk
TAXATION – application for review of an objection decision – application for release from taxation liability – eligible and non-eligible taxation liabilities – whether taxpayer would suffer serious hardship if he were required to satisfy his taxation liabilities – meaning of phrase ‘serious hardship’ – income/outgoing test – assets/liabilities test – other relevant factors in deciding whether to exercise discretion to grant release from taxation liabilities – serious financial hardship found – other relevant factors weigh against exercising discretion – reviewable decision affirmed
Full decision here
ZWBX and Commissioner of Taxation [2024] AATA 2065
18 June 2024 | Member D Mitchell
TAXATION – early stage investor tax offset – early stage innovation company – are the company or the group activities taken into consideration for the purposes of the innovation test outlined in section 360-40(1)(e) of the Income Tax Assessment Act 1997 (Cth) – question of statutory interpretation – decision under review affirmed
Full decision here
Youssef Said Abdelbari and Commissioner of Taxation [2024] AATA 1978
24 June 2024 | Senior Member G Lazanas
TAXATION – whether four transfers of money from overseas to applicant are assessable income – where three transfers made by a company that applicant was previously a partner of – where three transfers described as payment of salary – where one transfer made by applicant’s son and described as family support – where applicant signed special power of attorney appointing son as attorney in relation to company – whether four transfers of money are from applicant’s son pursuant to a loan agreement – whether loan exists – periodicity of payments – burden of proof – failure to adduce reliable evidence – objection decision affirmed
Full decision here
GNBF and Commissioner of Taxation [2024] AATA 2152
24 June 2024 | Senior Member D K Grigg
TAX – review under Part IVC of the Taxation Administration Act 1953 (Cth) – amended assessments of income tax pursuant to section 167 of the Income Tax Assessment Act 1936 – whether evasion – consideration of section 170(1) (item 5) of the ITAA 1936 – onus of proof – limited documentation – consideration of extent of corroboration required – penalties – whether intentional disregard, recklessness or lack of reasonable care – whether base penalty uplift applies – whether penalties should be remitted – whether shortfall interest charge should be remitted – decisions affirmed
Full decision here
Ecosse Group Holdings Pty Ltd and Commissioner of Taxation [2024] AATA 2073
26 June 2024 | Member R Reitano
TAXATION – Goods and Services Tax – input tax credit – creditable acquisition – acquisition – supply – consideration – demand for payment – tax invoice – period to which input tax credit to be attributed – penalties – remission of penalties – recklessness
Full decision here
Colin and Tax Practitioners Board [2024] AATA 2151
28 June 2024 | Senior Member Benk
PRACTICE AND PROCEDURE – STAY APPLICATION – tax agents’ registration – false and misleading statements – underreported income – failure to lodge returns and business activity statements prospects of success – public interest – hardship – early hearing – dissolution of interim stay
Full decision here
Disclaimer: The information on this page is for general information purposes only and is not specific to any particular person or situation. There are many factors that may affect your particular circumstances. We advise that you contact Mathews Tax Lawyers before making any decisions.