Author Archives: John Morgan

*Bell v FCT – CGT – Court finds the ‘net asset value test’ failed because an money was held in an interest off-set account instead of being used to pay off the mortgage – even though another loan in trust did relate to assets [21]

The Federal Court has dismissed a taxpayer’s appeal from the decision in AAT Case [2012] AATA 45, Re Bell and FCT in which the AAT found that the taxpayer failed to qualify for the CGT small business concessions in relation to a capital gain of $6m made by a family trust to which the taxpayer…

*DCT v Bollands & Ors – Freezing orders varied to allow taxpayer access to funds for legal expenses [20]

The Federal Court has allowed a taxpayer’s interlocutory application to vary freezing orders to allow the taxpayer to access funds to meet “reasonable legal expenses” in relation to a complex dispute with the Commissioner over an $11.8m tax debt. The freezing orders were made in relation to funds held by a related trust to which…

*Thorpe v FCT – AAT ordered to rehear case after reproducing the Commissioner’s submissions without attribution (no independent thought?) [19]

The Federal Court has remitted a matter to be heard and decided again by the AAT after finding that the AAT had made an error of law amounting to a constructive failure to exercise its jurisdiction by substantially reproducing the Commissioner’s written submissions verbatim and without attribution in its reasons for its decision. The substantiative…

*Palassis & Ors v FCT (No 2) – Income tax and GST assessments, and Div 7A issues: AAT ordered to rehear case [18]

The Federal Court has remitted a matter to be heard and decided again by the AAT after finding the AAT had made an error of law amounting to a constructive failure to exercise its jurisdiction by substantially reproducing the Commissioner’s written submissions verbatim and without attribution. The substantive issue in the case concerns the taxpayer’s…

*Australia and New Zealand Banking Group Limited v Konza – Full Federal Court confirms validity of s 264 notices seeking Vanuatu bank information [17]

The Full Federal Court has unanimously upheld the decision in Australia and New Zealand Banking Group Limited v Konza [2012] FCA 196 and confirmed that notices issued by the ATO under s 264 of the ITAA 1936 to the Bank were valid. The notices sought information about customers of an affiliate of ANZ with accounts…

*Binetter v DCT – Taxpayer loses appeal on review of Commissioner’s decision to issue a s 264 notice issue [16]

In a decision handed down on Thur 6.9.2012, the Full Federal Court has dismissed a taxpayer’s appeal from part of the judgment of Robertson J in Binetter v DCT (No 3) [2012] FCA 704, concerning the validity of s 264 notices issued by the Commissioner. The Federal Court had refused the taxpayer’s application for judicial…

*FCT v Park – ATO garnishee notice valid: Commissioner’s appeal allowed [15]

In a majority 2:1 decision, the Full Federal Court allowed the Commissioner’s appeal from a 2011 decision in the Federal Magistrates Court in which the Commissioner’s garnishee notice was set aside regarding a property transaction. The transaction in this case involved a property owned by a Mrs Bassili over which she granted a mortgage to…

Net effect of company tax cut traded off against repeal of other tax concessions [14]

Chartered Accountants say it will have negative impact on economy According to the Institute of Chartered Accountants, removing concessions on existing tax-based incentives to capital investment will have a negative impact on Australia’s GDP. The Institute, in its submission to the Business Tax Working Group (BTWG), argued that proposed options to trade off concessions on…

*Words of caution about the ‘reform’ of Part IVA from Logan J – if it were to eliminate the ‘do nothing’ postulate [13]

In a recent address, Federal Court Judge The Hon Justice Logan RFD, commented on the anti-avoidance provisions of Pt IVA. He noted it has been suggested that, in light of cases such as RCI Pty Ltd v FCT [2011] FCAFC 104 and FCT v Futuris Corporation Ltd [2012] FCAFC 32, Pt IVA was in need…

*‘Gag clauses’ banned in ‘Not For Profit’ sector contracts – Government announcement and amendments to legislation [12]

The Government on Wed 19.9.2012, announced that it would introduce legislation to ban gag clauses in Commonwealth contracts with the Not-For-Profit sector. The Assistant Treasurer said the legislation would build on the Government’s reforms to the NFP sector, including the new charities commission, by ensuring gag clauses are not used in any Commonwealth funding agreements.…