Cumins v Commissioner of Taxation [2007] FCAFC 21

FEDERAL COURT OF AUSTRALIA

Cumins v Commissioner of Taxation [2007] FCAFC 21 TAXATION - appeal from judgment of a single judge affirming decision of Administrative Appeals Tribunal – Tribunal affirmed decision of Commissioner to disallow objection to amended income tax assessment – whether Tribunal correctly decided that the appellant as trustee did not incur a capital loss resulting from the sale of a beneficial interest in shares from one family trust to another – applicability of Part IVA of the Income Tax Assessment Act 1936 (Cth) – whether the Tribunal failed to properly exercise its discretion under s 177F of the Act – whether Tribunal found a "tax benefit" without proper consideration of the alternative transactions – nature of consideration required in relation to each paragraph under s 177D(b) – exercise of discretion in relation to additional tax and remission – no error disclosed in decision of primary judge or that of the Tribunal. Income Tax Assessment Act 1936 (Cth), Pt IVA, ss 177C, 177D, 177F Income Tax Assessment Act 1997 (Cth), Pt 3-1 George v Federal Commissioner of Taxation (1952) 86 CLR 183, cited Commissioner of Taxation v Dalco (1990) 168 CLR 614, cited Federal Commissioner of Taxation v Peabody (1994) 181 CLR 359, cited Federal Commissioner of Taxation v Hart (2004) 217 CLR 216, cited Walstern v Commissioner of Taxation (2003) 137 FCR 1, cited PETER CUMINS v COMMISSIONER OF TAXATION WAD 53 OF 2006

RYAN, TAMBERLIN AND MIDDLETON JJ

2 march 2007

SYDNEY (HEARD IN PERTH) IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 53 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: PETER CUMINS

Appellant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGES: RYAN, TAMBERLIN AND MIDDLETON JJ DATE OF ORDER: 2 march 2007