FEDERAL COURT OF AUSTRALIA Clarke v Commissioner of Taxation [2008] FCAFC 126 RALPH CLARKE v COMMISSIONER OF TAXATION SAD 112 of 2007 BRANSON, SUNDBERG AND DOWSETT JJ 10 JULY 2008 SYDNEY (HEARD IN ADELAIDE) IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 112 of 2007 QUESTIONS OF LAW REFERRED BY THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: RALPH CLARKE Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGES: BRANSON, SUNDBERG AND DOWSETT JJ DATE OF ORDER: 10 JULY 2008 WHERE MADE: SYDNEY (HEARD IN ADELAIDE) THE COURT ORDERS THAT: 1. The first of the questions of law referred to the Court be answered as follows: Question 1 On the true construction of the Superannuation (Benefits Scheme) Act 1992 (SA) and the Southern State Superannuation Act 1994 (SA), were the amounts paid for or by the applicant to, or otherwise credited or attributed to an account for the applicant, "contributed amounts" within the meaning of s 9(2) and s 38 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) ("the Assessment Act") with respect to surchargeable contributions reported for the financial years ending 30 June 1997 through to 30 June 2001? Answer: Yes 2. The second of the questions of law referred to the Court be answered as follows: Question 2 Were the amounts paid for or by the applicant to, or otherwise credited or attributed to an account for the applicant by, a superannuation provider (if any) in connection with the Superannuation (Benefits Scheme) Act 1992 (SA) and the Southern State superannuation Act 1994 (SA) in the relevant financial years, "surchargeable contributions" of the applicant for those financial years within the meaning of s 9(2) of the Assessment Act? Answer: Yes 3. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 112 of 2007 QUESTIONS OF LAW REFERRED BY THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: RALPH CLARKE Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGES: BRANSON, SUNDBERG AND DOWSETT JJ DATE: 10 JULY 2008 PLACE: SYDNEY (HEARD IN ADELAIDE) REASONS FOR JUDGMENT The Court 1 On 13 June 2008 we published reasons for judgment in this matter (Clarke v Commissioner of Taxation [2008] FCAFC 106) but deferred answering questions one and two of the three questions of law referred to the Court until the parties had the opportunity to make further submissions as to the appropriate answers to those questions having regard to our reasons for judgment. The reasons why we adopted this course are amplified in [2] below: 2 After preparation of our earlier reasons we formed the view that Questions 1 and 2 might not be susceptible of simple answers. Question 1, for example, does not identify the amounts to which it applies or the recipients or accounts to which such amounts must have been paid. It may be inferred that the payments in question were payments pursuant to the SBS Act or SSS Act, but the CP Assessment Act contemplated some such amounts being, and some not being, contributed amounts. See s 38. Further, that Act commenced on 20 August 1996 (in the year ended 30 June 1997) so that amounts paid prior to that date were presumably not contributed amounts. It may be that the words "with respect to surchargeable contributions reported …" in some way obviated these apparent problems, but that seems unlikely. Although some contributed amounts were surchargeable contributions, some were not. See s 9 of the CP Assessment Act. Similar comments apply, mutatis mutandis, to Question 2. However, in answering that question, it was also necessary to address s 274 of the Income Tax Assessment Act. Question 2 did not do so. 3 Notwithstanding these problems (which are identified in our earlier reasons) the parties have agreed that Questions 1 and 2 should each be answered "Yes". We adopt that course. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Sundberg and Dowsett. Associate: Dated: 10 July 2008 Counsel for the Applicant: Mr PA Heywood-Smith QC with Mr A Tokley Solicitor for the Applicant: Johnson Withers Counsel for the Respondent: Dr M Perry QC with Ms M Wall Solicitor for the Respondent: Australian Government Solicitor Counsel for the Intervener: Mr M Wait with Ms A Harris Solicitor for the Intervener: Crown Solicitor for South Australia Date of Hearing: 6, 7 & 8 November 2007 Date of Final Submissions: 27 June 2008 Date of Judgment: 10 July 2008