Category Archives: Tax Month – August 2013

*Income tax and GST assessments affirmed – rival ‘T accounts’ did not satisfy the burden of proof as the factual assumptions were not proved on balance of probabilities [36]

The AAT has affirmed the Commissioner’s decision to issue amended income assessments to husband and wife taxpayers as well as amended GST assessments in relation to a partnership for the 2002 to 2006 income years. In addition, it also held that the taxpayers were liable to a shortfall penalty of 50% for recklessness and that…

*Re Harste and FCT – No genuine redundancy payment because of the statutory requirement that the taxpayer not have turned 65 (he was 67) [35]

The AAT has ruled that a termination payment was not a “genuine redundancy payment” as the taxpayer was over age 65 when he was dismissed from his employment. The taxpayer, aged 67, received an employment termination payment (ETP) payment in September 2011 following a restructure by his employer whereby his services as a power generation plant operator…

Tettis v DCT – Tax debt compromise and GIC remission – taxpayer applications refused [34]

A taxpayer been unsuccessful before the Federal Circuit Court in seeking review of the Commissioner’s decisions to refuse a tax debt compromise and remission of GIC and penalties. The taxpayer’s father operated a jewelry business. However, following various misfortunes including ill health of the father and the global financial crisis, the taxpayer became aware of…

*DCT v Songa Offshore Pte Ltd – Commissioner successful in application for summary judgment for $38.5m, and no stay either [33]

The Federal Court has granted the Commissioner’s application for summary judgment against a taxpayer for a debt of over $38.5m (including interest and late payment charges), even though the taxpayer’s objection against the relevant amended assessment had not yet been dealt with by the Commissioner. The substantive matter related to an amended assessment issued to…

*Resource Capital Fund IV LP & Anor v FCT & Anor – s255 notices requiring Aust Co to pay Canadian currency it allegedly ‘controlled’ for vendor shareholders held ineffective [32]

Section 255 notices requiring a company to retain out of Canadian currency sufficient funds to meet a taxpayer’s Australian income tax liability were ineffective. The taxpayers (RCF IV and RCF V) were 2 limited partnerships formed in the Cayman Islands. They owned shares in an Australian company (Talison), which they sold to a third party.…

*FCT v Rigoli – Taxpayer did not discharge burden of proof re deemed assessments [31]

The Commissioner has been successful before the Federal Court in appealing against an earlier AAT decision, which had allowed to an extent a taxpayer’s claim for depreciation for certain items of plant and equipment used in a partnership business. The matter concerned assessments issued under s 167 of the ITAA 1936 to the taxpayer for the…

Further Federal Court appointment announced [30]

On 28 August 2013, the Attorney-General announced the appointment of Michael Wigney SC to the Federal Court of Australia. Mr Wigney will serve in the Sydney Registry with effect from 9 September 2013. Mr Wigney joins 2 new appointments to the Federal Court of Australia, Darryl Rangiah QC and Dr Melissa Perry QC, announced previously by the Attorney-General. [LTN…

New appointments to Federal Court, Federal Circuit Court, AAT announced [29]

The Attorney-General Mark Dreyfus QC has announced 2 appointments to the Federal Court. Appointees to the Federal Court are Mr Darryl Rangiah QC, who will serve in the Brisbane Registry with effect from 13 August 2013, and Dr Melissa Perry QC, who will serve in the Sydney Registry with effect from 23 September 2013. Mr Dreyfus said a further…

*FCT v Ludekens – Commissioner wins appeal – civil penalties apply to “promoters” of tax scheme [28]

The Full Federal Court has unanimously allowed the Commissioner’s appeal and held that 2 persons were “scheme promoters” in terms of Div 290 of the TAA and therefore were liable for civil penalties. The matter involved 2 men who were marketers (and investors) in a managed investment scheme for which Product Ruling PR 2006/8 (the “2006…

FCT v Fabig – CGT scrip-for-scrip rollover: Commissioner’s appeal allowed – participation not “available on substantially the same terms” [27]

In a decision handed down on Wed 28.8.2013, the Full Federal court allowed the Commissioner’s appeal and held that the AAT, at first instance in AAT Case [2013] AATA 25, Re Dickinson and FCT; AAT Case [2013] AATA 26, Re Fabig and FCT, had erred in finding that the CGT scrip-for-scrip roll-over relief was available…