Commissioner of Taxation v Zoffanies Pty Ltd [2003] FCAFC 236

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Zoffanies Pty Ltd [2003] FCAFC 236 TAXATION – whether the Administrative Appeals Tribunal applied the wrong test under s 177D of the Income Tax Assessment Act 1936 (Cth) by considering the subjective rather than objective intention of the taxpayer – whether the Administrative Appeals Tribunal failed to consider an alternative particularisation of the scheme alleged to exist by the Commissioner and thereby erred in law PRACTICE AND PROCEDURE – whether the Court has power to order the remittal of part of the matter to the Administrative Appeals Tribunal where the Commissioner appealed only as to that part of the judgment of the Administrative Appeals Tribunal and, if so, whether it ought to so remit Administrative Appeals Tribunal Act 1975 (Cth) s 44(1), 44(3)(b)(ii) Income Tax Assessment Act 1936 (Cth) s 73B, 73CA, 177A(1), 177D, 177F(1), s 260 Migration Act 1958 (Cth)

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 applied Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 applied Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 applied Eastern Nitrogen Ltd v Commissioner of Taxation (2001) 108 FCR 27 referred to Minister for Immigration & Ethnic Affairs v Gungor (1982) 42 ALR 209 applied Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385 approved Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 applied Peabody v Commissioner of Taxation (1993) 40 FCR 531 applied Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 applied COMMISSIONER OF TAXATION v ZOFFANIES PTY LIMITED N 1029 OF 2002 HILL, HELY, & GYLES JJ 24 OCTOBER 2003 SYDNEY