Avel Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 70

FEDERAL COURT OF AUSTRALIA

Avel Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 70

SALES TAX – video games for use in amusement arcades – no reference in sale contracts to copyright licence or public exhibition right and (hence) no amount specified as payable for such licence or right – Administrative Appeals Tribunal found implied term in contracts that such licence or right was granted to purchaser – whether Tribunal erred in law in concluding that purchase price did not include an amount by way of consideration for such grant. Sales Tax Assessment Act 1992 (Cth), ss 36(1), 36(2), 43(1), 51, 95 Taxation Administration Act 1953 (Cth), s 14ZZ Copyright Act 1968 (Cth)

Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 144 ALR 528 referred to Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 referred to Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 referred to Tanu v Federal Commissioner of Taxation (1998) 154 ALR 102 referred to Tanu v Federal Commissioner of Taxation (1999) 160 ALR 227 referred to

AVEL PTY LTD v FEDERAL COMMISSIONER OF TAXATION

W59 of 2003

SONDO PTY LTD v FEDERAL COMMISSIONER OF TAXATION

W60 of 2003

HILL, CARR & HELY JJ

29 MARCH 2004

SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W59 OF 2003

BETWEEN: AVEL PTY LTD

APPLICANT

AND: FEDERAL COMMISSIONER OF TAXATION

RESPONDENT

JUDGES: HILL, CARR & HELY JJ

DATE OF ORDER: 29 MARCH 2004

WHERE MADE: SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal, made on 20 February 2003, be set aside. 3. The application for review which was the subject of that decision be remitted to the Tribunal for assessment of the credits payable under the Sales Tax Assessment Act 1992 (Cth). 4. The respondent pay the applicant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.