Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154

FEDERAL COURT OF AUSTRALIA

Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154

PRACTICE AND PROCEDURE — appeals — appeals on question of law pursuant to s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) — where purported questions seek to characterise questions of fact as questions of law — where purported questions invite court to examine evidence and other material before tribunal and conduct rehearing as to facts determined by tribunal TAXATION AND REVENUE — deduction — where losses incurred from purchase and sale of land — whether losses in the nature of revenue or capital losses TAXATION AND REVENUE — deduction — penalties pursuant to s 226J of the Income Tax Assessment Act 1936 (Cth) — where penalty assessed at 75 per cent of the tax shortfall — whether error of law in determining penalty Income Tax Assessment Act 1936 (Cth) ss 51(1), 80A, 80E, 226J, 227(3) Administrative Appeals Tribunal Act 1975 (Cth)s 44 Taxation Administration Act 1953 (Cth) s 14ZZK(b) Federal Court Rules O 53 HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 219 ALR 591applied Sharp Corporation of Australia Pty Ltd v Collector of Customs (1999) 59 FCR 6 cited Comcare v Etheridge (2006) 227 ALR 75applied Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 cited Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 cited Commissioner of Taxation v Brixius (1987) 16 FCR 359 applied Placer Pacific Management Pty Ltd v Federal Commissioner of Taxation (1995) 31 ATR 253discussed Amalgamated Zinc (De Bavay's) Ltd v Federal Commissioner of Taxation (1935) 54 CLR 295cited Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321applied Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 applied Hope v Bathurst City Council (1980) 144 CLR 1 cited Vetter v Lake Macquarie City Council (2001) 202 CLR 439 cited TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Moana Sand Pty Ltd v Federal Commissioner of Taxation (1988) 88 ATC 4897distinguished Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42 cited Westfield Ltd v Federal Commissioner of Taxation (1991) 28 FCR 333cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1995) 43 FCR 280 applied Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 135 CLR 259 applied Condell v Federal Commissioner of Taxation 2007 ATC 4404applied PRICE STREET PROFESSIONAL CENTRE PTY LTD v COMMISSIONER OF TAXATION QUD 100 OF 2007