Cameron Brae Pty Limited v Commissioner of Taxation [2007] FCAFC 135

FEDERAL COURT OF AUSTRALIA

Cameron Brae Pty Limited v Commissioner of Taxation [2007] FCAFC 135

INCOME TAX – superannuation – payment to non-complying fund by way of discretionary trust – no fringe benefits tax payable – no deduction under s 82AAE Income Tax Assessment Act 1936 (Cth)

INCOME TAX – payment to superannuation fund capital not revenue expense

WORDS AND PHRASES – "superannuation fund", "for the purpose of making provision for superannuation benefits for an eligible employee", "fully secured", "fringe benefit", "indefinite"

Acts Interpretation Act 1901 (Cth) s 15AA Fringe Benefits Tax Assessment Act 1986 (Cth) s 136 Income Tax and Social Services Contribution Assessment Act (No 3) 1952 (Cth) s 11 Income Tax and Social Services Contribution Assessment Act 1961 (Cth) s 11 Income Tax and Social Services Contribution Assessment Act (No 3) 1964 (Cth) ss 6, 18 Income Tax Assessment Act 1915 (Cth) ss 11, 18 Income Tax Assessment Act 1922 (Cth) ss 14, 23 Income Tax Assessment Act 1936 (Cth) ss 6, 23, 23F, 23FC, 66, 78, 79, 82AAA, 82AAC, 82AAD, 82AAE, 82AAM, 82AAT, 121B, 226K, 267 Income Tax Assessment Act 1941 (Cth) ss 12, 13 Income Tax Assessment Act 1944 (Cth) s 7 Income Tax Assessment Act 1965 (Cth) Income Tax Assessment Act 1997 (Cth) s 8-1 Occupational Superannuation Standards Act 1987 (Cth) s 3 Occupational Superannuation (Reasonable Benefit Limits) Amendment Act 1990 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth) s 10 Taxation Laws Amendment Act (No 4) 1987 (Cth) Taxation Laws Amendment Act (No 2) 1989 (Cth) Taxation Laws Amendment Act (No 2) 1992 (Cth) Taxation Laws Amendment Act (No 4) 1994 (Cth) Taxation Laws Amendment (Superannuation) Act 1992 (Cth)

BP Australia Limited v Commissioner of Taxation (1965) 112 CLR 386 Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68 referred to British Insulated and Helsby Cables Limited v Atherton [1926] AC 205 applied CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied Commissioner of Taxation v Citylink Melbourne Ltd (2006) 228 ALR 301 referred to Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Limited (2007) 158 FCR 325 discussed Compton v The Commissioner of Taxation (1966) 116 CLR 233 referred to Driclad Pty Limited v Commissioner of Taxation (1968) 121 CLR 45 referred to Essenbourne Pty Limited v Commissioner of Taxation (2002) 51 ATR 629 discussed Federal Commissioner of Taxation v The Northern Timber and Hardware Company Proprietary Limited (1960) 103 CLR 650 referred to GP International Pipecoaters Proprietary Limited v Commissioner of Taxation (1990) 170 CLR 124 applied Hallstroms Proprietary Limited v Federal Commissioner of Taxation (1946) 72 CLR 634 applied Harris v Commissioner of Taxation (2002) 125 FCR 46 discussed Hart v Commissioner of Taxation of the Commonwealth of Australia (2002) 121 FCR 206 referred to HP Mercantile Pty Limited v Commissioner of Taxation (2005) 143 FCR 553 referred to Jeffrey James Prebble Pty Limited v Commissioner of Taxation (2003) 131 FCR 130 discussed Magna Alloys and Research Pty Limited v Commissioner of Taxation (1980) 33 ALR 213 followed Mahony v Commissioner of Taxation (1965) 39 ALJR 62 referred to Mahony v Commissioner of Taxation (1968) 41 ALJR 232 referred to Metropolitan Gas Company v Federal Commissioner of Taxation (1932) 47 CLR 621 referred to Mount Isa Mines Limited v Commissioner of Taxation (1992) 176 CLR 141 referred to Network Ten Pty Ltd v TCN Channel Nine Pty Limited (2004) 218 CLR 273 applied Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 applied Pridecraft Pty Limited v Commissioner of Taxation (2004) 213 ALR 450 followed Raymor Contractors Pty Limited v Commissioner of Taxation (1991) 21 ATR 1410 discussed Scott v Commissioner of Taxation (1966) 40 ALJR 265 referred to Sun Newspapers v The Federal Commissioner of Taxation (1938) 61 CLR 337 applied Walstern Pty Limited v Commissioner of Taxation (2003) 138 FCR 1 discussed Winchombe Carson Ltd v Commissioner of Taxation (NSW) (1938) 5 ATD 69 referred to