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This page features a selection of recent cases of potential interest to our members and subscribers, as well as news updates from the Association. You can subscribe below to stay up to date with new posts.

Please note that this page is not a complete listing of all tax cases, but focuses on decisions of presidential members of the Administrative Appeals Tribunal, the Federal Court, and the High Court. Decisions may be removed from time to time.

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McGlinn v Commissioner of Taxation [2018] FCA 1275

INCOME TAX – appeal under s 14ZZ of the Taxation Administration Act 1953 (Cth) – where Commissioner of Taxation deferred applicant’s tax loss pursuant to s 35-10 of the Income Tax Assessment Act 1997 (Cth) – where applicant filed a notice of objection which was disallowed – whether the role of the Court is limited to Avon Downs judicial review – where decision-maker had to determine whether a new business activity commenced in 2008 – whether decision-maker had misconceived the statutory task – whether the error could have affected the determination of the applicant’s objection Full decision here

Mangat and Commissioner of Taxation (Taxation) [2018] AATA 3012

TAXATION – INCOME – EMPLOYEE SHARE SCHEMES – date of acquisition of beneficial interest in right to acquire shares – whether more than 12 months before cancellation of options – whether capital gains tax discount applies – default assessment – imposition of administrative penalty due to failure to lodge tax return – penalty partially remitted – whether penalty should be further remitted – objection decision regarding income tax affirmed – objection decision regarding remission of penalty set aside and remitted Full decision here

Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2018] FCAFC 122

Appeal allowed from decision of Federal Court SUPERANNUATION – in-house asset rules – self-managed superannuation fund – where a self-managed superannuation fund acquired units of a particular class in a managed investment scheme – where the units were referred to as units in a sub-fund – where a particular property was acquired by the responsible entity of the managed investment scheme on behalf of the class of unit holders – whether the units held by the trustee of the self-managed superannuation fund constituted an investment in a “related trust” so as to constitute an in-house asset – whether there was a distinct trust associated with the class of units TRUSTS – definition of a trust

Ford and Commissioner of Taxation (Taxation) [2018] AATA 3039

TAX – where applicant failed to provide her income tax return on time - whether administrative penalty correctly imposed under section 284-75(3) of Schedule 1 of the Taxation Administration Act 1953 –– whether discretion should be exercised to remit the penalty - decision under review affirmed. Full decision here

Federal Commissioner of Taxation v Thomas [2018] HCA 31

Appeal allowed from decision of Full Federal Court. Taxation – Division 207 in Pt 3-6 of Income Tax Assessment Act 1997 (Cth) – Where trustee passed resolutions purporting to distribute franking credits to beneficiaries of trust separately from and in different proportions to income comprising franked distributions – Where directions made by Supreme Court of Queensland pursuant to s 96 of Trusts Act 1973 (Q) concerning the resolutions – Whether directions determined against Commissioner of Taxation the application of Div 207. Words and phrases – "deemed assessment", "determine conclusively", "directions", "franked distribution", "franking credit", "imputation credit", "income tax return", "j

Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd)

Taxpayer not granted access to internal ATO legal advice under s 37(2) AAT Act ADMINISTRATIVE LAW – application for judicial review of decision by Administrative Appeals Tribunal to issue direction under s 37(2) of Administrative Appeals Tribunal Act 1975 (Cth) – where direction compels applicant to produce internal legal advices prepared in relation to respondent – whether Tribunal erred in forming opinion that the internal legal advices “may be relevant” to its review – whether asserted error was a jurisdictional error or an error within jurisdiction – whether subjective material can be relevant to objective assessment – held: basis on which Tribunal formed an opinion that legal advices ma

Song v Commissioner of Taxation [2018] FCA 840

PRIVILEGE – Claim of legal professional privilege – application in personal capacity – application in capacity as company director – whether advice given was legal or commercial in character - whether dominant purpose of documents was to give or obtain legal advice – whether third party was agent of applicant for purposes of communications made to obtain or receive legal advice – whether the person from whom advice was sought or given was a qualified foreign lawyer – whether advice provided by a foreign lawyer provided in that capacity – whether inference could be drawn of a person providing legal advice under supervision of a qualified lawyer Full decision here

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