Clarke v Commissioner of Taxation [2008] FCAFC 106

FEDERAL COURT OF AUSTRALIA

Clarke v Commissioner of Taxation [2008] FCAFC 106

INTERPRETATION – referral of questions of law from Administrative Appeals Tribunal – "contributed amounts" to state superannuation schemes as "surchargeable contributions" for the purposes of ss 9 and 38 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) – Austin v Commonwealth (2003) 215 CLR 185 SUPERANNUATION – membership of a state superannuation scheme – amounts paid under such a scheme as contributed amounts for the purposes of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) – such contributed amounts as surchargeable contributions under the same Act CONSTITUTIONAL LAW – taxation on the property of a State contrary to s 114 of the Commonwealth Constitution – Commonwealth interference with a superannuation scheme of a State – alteration of the method of payment of superannuation Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) ss 7, 8, 9, 12, 38 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth) s 4 Superannuation Contributions Tax (Assessment and Collection) Act 1997 (Cth)s 8(3)-(5) Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1999 (Cth) Income Tax Assessment Act 1936 (Cth) ss 6E, 267, 271, 274, 281, 288, 294 Superannuation Guarantee (Administration) Act 1992 (Cth) ss 7, 28 Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 45, 46 Occupational Superannuation Standards Act 1987 (Cth) s 12 Taxation Laws Amendment Act (No 2) 1989 (Cth) s 9 Taxation Laws Amendment Bill (No 6) 1988 (Cth) Commonwealth Constitution s 114 Income Tax Regulations 1936 (Cth) Parliamentary Superannuation Act 1948 (SA) Parliamentary Superannuation Act 1974 (SA) ss 8, 13-18, 21, 21a, 23-30, 35A, 39 Superannuation (Benefit Scheme) Act 1992 (SA) ss 7, 10 Southern State Superannuation Act 1994 (SA) ss 4, 98, 12, 26, 27, Schedule 3 Southern State Superannuation (Merger of Schemes) Amendment Act 1998 (SA) s 13 Public Finance and Audit Act 1987 (SA) ss 5, 11 Superannuation Act 1988 (SA) Statutes Amendment (Commutation for Superannuation Surcharge) Act 1999 (SA) Statutes Amendment (Miscellaneous Superannuation Measures) Act 2004 (SA)