Category Archives: Tax Month – April 2015

*Robson & Ors v FCT – Incorporated association legislation does not import Corporations Act provisions about unfair preferences on winding up [26]

The Qld Supreme Court has held that s 91(2) of the Associations Incorporation Act 1981 (Qld) (“AIA”) does not pick up and apply Pt 5.7B of the Corporations Act 2001, including s 588FF(1)(a), to the winding up of an incorporated association. The Court said when an association incorporated under the AIA is ordered to be wound up…

*Paloto Pty Limited v Herro – No variation in trust vesting date to avoid tax liabilities [25]

The NSW Supreme Court has declined to allow the variation of a trust vesting date in order that tax liabilities could be avoided. The plaintiff is the trustee of a trust that was created by a Deed of Settlement made on 8 June 1965. The Trustee was required to hold the settled property on trust for the…

*In the matter of 4 Doonan Street Collinsville Pty Ltd (in liq) – FCT can set off amounts in the taxpayer’s RBA without breaching liquidation rules [24]

In a complex procedural matter, the NSW Supreme Court has held that where a company is in liquidation, the Commissioner is nevertheless entitled to make adjustments to the company’s running balance account (RBA) in respect of transactions which took place prior to the company being placed in liquidation. The adjustments related to a credit for an…

*Westpac Banking Corporation v Jamieson & Ors – Judgment for damages resulting from financial loss upheld; gross-up for taxable damages [23]

The Qld Court of Appeal has dismissed appeals by a bank and cross-appeals by a husband and wife concerning damages awarded for a financial loss stemming from advice given by a financial planner. In mid-2007, a husband and wife obtained a statement of advice from a financial planner employed by Westpac Banking Corporation. The husband…

Re Creation Ministries International Ltd and Screen Australia – Refundable film tax offset disallowed [22]

The AAT has upheld a decision of Screen Australia which held that certain expenditure by the applicant was not incurred by the applicant for the purpose of qualifying for a refundable film tax offset. The applicant (Creation Ministries) is a not-for-profit corporation that seeks to affirm the reliability of the Bible. It made a film…

Re Pacific Worldwide Pty Ltd and CEO of Customs – taxpayer wins as imported wontons, dumplings not classified as ‘pasta’ [21]

The AAT has held that a decision by Customs be set aside that had classified goods entered as wontons, dumplings, parcels and hargows as Pasta. The taxpayer is an importer of frozen foods, broadly described as dumplings and wontons with a seafood filling. The AAT said the goods are imported from Vietnam under the brand-name…

*Re Applicant and FCT – no reduction in tax on capital gain for prior year capital loss; lot compulsorily acquired and holding costs [20]

The AAT has affirmed the Commissioner’s objection decisions denying a taxpayer’s claims for reduction of a capital gain on the disposal of a property. In the year ended 30 June 1989, the taxpayer acquired 14.508 hectares of unimproved land, zoned “Rural”, situated in Wanneroo in Western Australia (Property) with the intention of developing it for use as…

*Trustee for the Payne Superannuation Fund v FC of T – ‘net exempt income’ losses cannot be carried forward to reduce future ‘net exempt income’ [19]

In a case involving the calculation of losses carried forward under Subdiv 36-A of ITAA 1997, the AAT has confirmed that a net exempt loss of a year of income cannot be carried forward to a future year but rather is lost. Under s 36-10 of ITAA 1997, a tax loss arises in any income…

Hii v FCT – Failure to consider ‘fraud or evasion’ issue not s39B invalid – Notice of Assessment conclusive except in Part IVC proceedings [18]

The Federal Court has dismissed a taxpayer’s application seeking orders that second amended assessments issued to him were invalid. These assessments were issued following the taxpayer being partially successful in his objection to the original amended assessments. In seeking the orders that the second amended assessments were invalid, the taxpayer argued that while the original…

*Donoghue v FCT – recovery proceedings dismissed – underlying assessments invalid because of intentional use of material protected by LPP [17]

The Federal Court has dismissed tax recovery proceedings against a taxpayer following earlier quashing assessments issued to him. Proceedings for the recovery of a taxation liability, grounded in the quashed assessments and related general interest charge (GIC), were originally instituted by a Deputy Commissioner of Taxation against the taxpayer in the Supreme Court of Queensland.…