The AAT has agreed to defer proceedings before it in relation to the assessability of a capital gain of $100,000 which the taxpayer claimed was incorrectly returned and lodged without his consent by the family accountant.
In particular, the AAT ruled that the hearing should be deferred pending the outcome of Supreme Court action in which the taxpayer was challenging the alleged transfer of his interest in 2 parcels of land to family members which gave rise to the alleged capital gain, and against which he subsequently lodged caveats “to prevent fraudulent and improper dealings” in the land.
The AAT arrived at its decision on the basis that should the taxpayer be successful in the Supreme Court proceedings, it may be that there had been no change in the ownership of the property and so no liability to CGT. Furthermore, it said that the issue before the Supreme Court was not a matter that could be decided by the AAT (but would be a relevant matter in considering whether there has been a CGT event), as it was not a mere evidentiary matter on which the AAT could make a finding of fact. It also noted the Supreme Court matter was moving towards a hearing.
As a result, the AAT concluded that considerations of substantive justice required that it defer its consideration of the matter before it until the judgment was known.
(AAT Case [2012] AATA 150, Re Kalafatis and FCT, AAT, Ref No 2008/3874, Forgie DP, 8 March 2012.)
[LTN 48, 12/3]