Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Commissioner of Taxation v Ostwald Bros Civil Pty Ltd [2008] FCAFC 99 TAXATION – appeal from Administrative Appeals Tribunal – where respondent claimed entitlement to off-road credit for use of diesel fuel – definition of "mining operations" in Energy Grants (Credits) Scheme Act 2003 (Cth) – whether construction of rail line is activity "in the preparation of a site to enable mining for minerals to commence"
WORDS AND PHRASES – "mining operations" Energy Grants (Credits) Scheme Act 2003 (Cth) s 11, 12, 53 Re A Taxpayer and Commissioner of Taxation [2007] AATA 1759 reversed Chief Executive Officer of Customs v Dyno Wesfarmers Limited (1997) 73 FCR 1 distinguished Chief Executive Officer of Customs v WMC Resources Limited (1998) 87 FCR 482 distinguished Regional Director of Customs (Western Australia) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108 discussed Australia, House of Representatives, Debates (1996) Vol HR210, p 8429 COMMISSONER OF TAXATION v OSTWALD BROS CIVIL PTY LTD AS TRUSTEE FOR OSTWALD BROS FAMILY TRUST
QUD 339 of 2007
HEEREY, GYLES & GREENWOOD JJ
11 JUNE 2008
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY QUD 339 of 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT HACK
BETWEEN: COMMISSONER OF TAXATION
Applicant
AND: OSTWALD BROS CIVIL PTY LTD AS TRUSTEE FOR OSTWALD BROS FAMILY TRUST
Respondent
JUDGES: HEEREY, GYLES & GREENWOOD JJ DATE OF ORDER: 11 JUNE 2008
WHERE MADE: BRISBANE
THE COURT ORDERS THAT:
1. The appeal be allowed. 2. The order made by the Administrative Appeals Tribunal on 13 September 2007 be set aside. 3. The application by Ostwald Bros Civil Pty Ltd as trustee for Ostwald Bros Family Trust for review by the Tribunal of the decision of the Delegate of the Commissioner of Taxation made on 10 April 2006, disallowing energy grants credit in respect of the construction of a rail line and access road to carry minerals from a mine site to a port, be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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