Condell v Commissioner of Taxation of the Commonwealth of Australia [2007] FCAFC 44

FEDERAL COURT OF AUSTRALIA

Condell v Commissioner of Taxation of the Commonwealth of Australia [2007] FCAFC 44

TAXATION – income tax – assessable income – company demerger – dealings between parent and subsidiary companies – distribution by parent of shares in subsidiary – whether dividends paid out of profits derived by parent – actual market value of shares greater than amount debited from profits account of parent company – from where profits derived – market value of shares irrelevant – nature of distribution considered only from parent company's perspective – findings based on accounts – accounts accepted as true and fair PRACTICE AND PROCEDURE – questions of law for purposes of appeal instituted under s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) – respondent filed notice of contention claiming judgment below should be affirmed on basis of ordinary income under s 6-5 of Income Tax Assessment Act 1997 (Cth) – power to allow amendment to questions of law – argument on notice of contention disallowed – issue whether ordinary income under s 6-5 never previously raised Income Tax Assessment Act 1936 (Cth), ss 44(1)(a) and 6(1) Administrative Appeals Tribunal Act 1975 (Cth), ss 44(1) and 44(7) Commissioner of Taxation v McNeil [2007] HCA 5 noted MacFarlane v Federal Commissioner of Taxation (1986) 13 FCR 356 referred to Federal Commissioner of Taxation v Slater Holdings Ltd (1984) 156 CLR 447 cited Davis Investments Pty Ltd v Commissioner of Stamp Duties (NSW) (1958) 100 CLR 392 referred to Commissioner of Taxation v Condell [2006] FCA 1047 noted Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 cited Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 cited Australia Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 cited Comcare v Etheridge (2006) 149 FCR 522 cited Coulton v Holcombe (1986) 162 CLR 1 referred to Dismin Investments Pty Ltd v Federal Commissioner of Taxation (2001) 183 ALR 565 referred to Ergon Energy Corporation Ltd v Commissioner of Taxation (2006) 153 FCR 551 referred to Hope v Bathurst City Council (1980) 144 CLR 1 referred to Evans v Deputy Federal Commissioner of Taxation (1936) 55 CLR 80 cited Commissioner of Taxation v Sun Alliance Investments Pty Ltd (in liq) (2005) 222 ALR 286 cited GREGORY CONDELL v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA QUD 349 OF 2006