SNSV v Commissioner of Taxation – carried on a business
TAXATION – allocation of matters to Small Business Taxation Division – where applicant denied he carried on a business – whether a “small business taxation decision” – matter allocated to Taxation and Commercial Division
[2022] AATA 4047 (29 November 2022); Senior Member R Olding
XPTC v Commissioner of Taxation – deductions for settlement payment
TAXATION – INCOME TAX – review of objection decision – whether allowable deductions – fees paid in settlement of court proceedings – legal fees – whether settlement or legal fees incurred in gaining or producing assessable income – essential character of expenditure from practical business point of view – expenditure for multiple purposes – whether expenditure of a private or domestic nature – whether expenditure of a capital nature – decision varied to allow deductions for the $200k payment.
[2022] AATA 4147 (28 November 2022); Mr Rob Reitano, Member
SVYR v Commissioner of Taxation – phone company’s credit to customer gave no GST credit for retailer
TAXATION – GOODS AND SERVICES TAX – mobile telephone and tablet accessories – where telecommunications provider granted credit to customer of its licensed retail mobile telephone and accessories outlet for purchase of accessories – where amount paid by telecommunications provider to retail outlet less than financed price repaid by customer – whether creditable acquisition by retail outlet – whether retail outlet has decreasing adjustment – significance of contractual terms – no taxable supply by telecommunications provider to retail outlet – no creditable acquisition – no decreasing adjustment – decision affirmed
[2022] AATA 3994 (24 November 2022); Deputy President Bernard J McCabe, Senior Member R Olding & Member D Mitchell
Philip Morris Ltd v Comptroller-General of Customs – availability of customs ‘drawbacks’
TAXATION – where applicant made applications for drawbacks pursuant to the Customs Act 1901 (Cth) and Customs (International Obligations) Regulation 2015 (Cth) – whether applicant gave notice in writing of intention to claim drawbacks as required by items 7(a) of s 37 of the Regulation – where applicant had made export declaration notices – whether notice of intention to claim drawbacks could be inferred from export declaration notices and surrounding circumstances – applicant did not comply with item 7(a) of s 37, substantially or at all – whether respondent had discretion to pay drawback notwithstanding non-compliance with items 7(a) of s 37 – no discretion to pay drawbacks – application dismissed
[2022] FCAFC 185 – 24 November 2022; LOGAN, THAWLEY AND HESPE JJ
Hedges v Commissioner of Taxation – CGT despite proceeds paid by off-set
INCOME TAX – capital gains tax – appeal from decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision of the Commissioner of Taxation to disallow the taxpayer’s objection to an assessment of discounted capital gain from disposal of goodwill in a partnership – where taxpayer is a retired partner of a law firm – where terms of partnership deed provided for the offsetting of moneys payable to and due from the retiring partner upon retirement – whether the relevant capital gain crystallised before or after amounts offset – Held: appeal dismissed with costs.
[2022] FCA 1389; Federal Court; 23 November 2022; CHEESEMAN J
Cammarano v Commissioner of Taxation – unexplained and unreported income
TAXATION – audits undertaken – amended assessments issued – unexplained and unreported income – gambling- whether assessment incorrect or excessive – standard of proof not satisfied – objection decision affirmed.
[2022] AATA 3910 (21 November 2022) – Senior Member K James, Member N Gaudion
SARROS v COMMISSIONER OF STATE REVENUE – Principal Place of Residence factors
Taxation – Land Tax – Exemption – Private residential property – Whether dwelling used as primary or principal place of residence – Relevant factors that inform assessment of whether a dwelling is used as a primary or principal place of residence
[2022] WASAT 102; 18 NOVEMBER 2022; DR S WILLEY, SENIOR MEMBER
Mourched v Chief Commissioner of State Revenue – land tax exemption for education and care service
REVENUE LAW – land tax – proper construction of the exemption in s 10(1)(u) of the Land Tax Management Act 1956 – proper construction of whether or not land ‘is used solely for the provision of an approved education and care service’ – proper construction of whether or not the land ‘is the place where the children are educated or cared for by the service’
[2022] NSWCATAP 362; 16 November 2022; Dr R Dubler SC, Senior Member, S Higgins, Senior Member
Chami v Commissioner of Taxation – ABN & GST registration cancelled
TAX – cancellation of Australian Business Number and GST registration – business activity statements revised to NIL – whether the applicant carried on an enterprise for GST and ABN purposes – where no corroborating independent material to support the applicant’s claim – where applicant claimed all corroborating material lost in flood – decision under review affirmed
[2022] AATA 3797 (11 November 2022) Senior Member D K Grigg
COMMISSIONER OF STATE TAXATION v PERPETUAL CORPORATE TRUST LIMITED – no duty on transfer of student accommodation (short term not ‘residential’)
TAXES AND DUTIES – STAMP DUTIES – EXEMPTIONS – CONVEYANCE OR TRANSFER ON SALE OF REAL PROPERTY – where the land sold comprised purpose-built student accommodation facilities; where by operation of s 105A(3) and (5) of the Stamp Duty Act (SDA), no liability to duty arises in relation to a conveyance or transfer of an interest in ‘qualifying land’ executed on or after 1 July 2018; where land that is taken to be used for residential purposes in accordance with sub-s 105A(2)(a) is excluded from the definition of ‘qualifying land’; where the primary judge was correct to conclude that the word ‘residential’ in these exceptions implies a permanent or long-term commitment to living in a particular place; where the property was designed and deployed as a form of accommodation that does not lend itself easily to the characterisation of long-term or permanent residence that is connoted by the term ‘residential purposes’ in s 105A – appeal dismissed – no duty payable.
[2022] SASCA 117; Supreme Court of South Australia (Court of Appeal); The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby; 10 November 2022
Nguyen v Chief Commissioner of State Revenue – foreign persons purchaser duty surcharge (temporary visa)
TAXES AND DUTIES — Surcharge purchaser duty — whether temporary visa means person is subject to a limitation as to time imposed by law and not “ordinarily resident” – assessment decision affirmed.
[2022] NSWCATAD 354; 10 November 2022; E Bishop, Senior Member
McEwan v Office of the Australian Information Commissioner (No 2) – decision not investigate ATO officer for breach of ‘privacy’ law for disclosing ‘protected information’
ADMINISTRATIVE LAW – judicial review – review of decision of the Australian Information Commissioner – where the Australian Information Commissioner determined not to investigate complaint further – where applicant alleged that officers within the Australian Taxation Office made disclosures of information protected under the Privacy Act 1988 (Cth) during an investigation – where decision of Australian Information Commissioner not to investigate was based on construction of s 355-50 of schedule 1 to the Taxation Administration Act 1953 (Cth) – whether s 355-50 permitted disclosure of protected information by a taxation officer in the course of an investigation of federal offences stemming from a taxation audit – where disclosure complained of permitted under the Privacy Act 1988(Cth) – where no jurisdictional error in decision of Australian Information Commissioner – application dismissed
TAXATION – power of taxation officer to disclose protected information under Ch5, Pt 5.1 Subdiv 355-B of sch 1 to the Taxation Administration Act 1953 (Cth) – where disclosure alleged to amount to breach of Australian Privacy Principles – where disclosure made in the context of an investigation by the Australian Taxation Office to a third party – whether disclosure otherwise authorised by law – where delegate of the Australian Information Commissioner determined to terminate applicant’s complaint under s 41(1) of the Privacy Act 1988 (Cth) on the basis that there was no interference with privacy and delegate was otherwise satisfied that an investigation was not warranted – where disclosure of protected information permitted under Subdiv 355-B of sch 1 to the Taxation Administration Act 1953 (Cth) in furtherance of an investigation – application dismissed
[2022] FCA 1488; 8 November 2022; Federal Court of Australia; Logan J
Cecere v Chief Commissioner of State Revenue – land tax exemption for principal place of residence
TAXES AND DUTIES – land tax – principal place of residence exemption – onus of proof
[2022] NSWCATAD 350; 04 November 2022; S Dunn, Senior Member
Chief Commissioner of State Revenue v Elanor Operations Pty Ltd – payroll tax ‘de-grouped’
TAXATION – Payroll Tax Act 2007 (NSW) – Appeal from decision of Supreme Court regarding exercise discretion to “de-group” entities under s 79 of the Payroll Tax Act 2007 (NSW); the respondent companies contended that payroll tax liability should be determined on the basis that the companies fit within five sub-groups, each of which corresponded to a discrete managed investment scheme; at first instance, Ward CJ in Eq (as her Honour then was) concluded that, on the evidence, the businesses were carried on independently of, and were not sufficiently connected with, any of the businesses carried on by any of the other respondents. No error of the kind in House v The King was established and therefore there was no warrant for this Court to re-exercise the discretionary power in s 79 of the Payroll Tax Act.– Appeal dismissed (‘de-grouping’ remained)
[2022] NSWCA 222; NSW Supreme Court Court of Appeal; Macfarlan JA at [1], Gleeson JA at [2] & Griffiths AJA at [3]; 03 November 2022
Duff v Commissioner of Taxation – seafarer not resident on ship
INCOME TAX – definition of “resident or resident of Australia” – s 6(1) Income Tax Assessment Act 1936 (Cth) – admitted pre-existing domicile in Australia – whether domicile changed in 2016 (on the basis that a person who works, and for that purpose lives, on a cruise liner becomes a domicile of the flag state – in this case, Norway; and that the Norway domicile of choice replaced his pre-existing Australian domicile) – whether applicant otherwise had permanent place of abode outside Australia – overseas employment – short-term contracts – Norwegian cruise liners – no intention that any new place of residence be indefinite – ship cannot be a domicile – Applicant not a resident of a new place – ships predominantly in international waters – no permanent place of abode outside Australia – sub-paragraph (a)(ii) of definition of “resident or resident of Australia” irrelevant to issues – Applicant a resident of Australia for tax purposes – decision affirmed
[2022] AATA 3675 (2 November 2022) Senior Member Ehrlich KC
[Tax Month – November 2022 – 3.1.23]