3D Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75

FEDERAL COURT OF AUSTRALIA

3D Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75

INCOME TAX –Administrative Appeals Tribunal affirmed Commissioner's decision to disallow 3D Scaffolding Pty Ltd's objections to claim deductions for expenditure incurred in hiring scaffolding equipment – whether Tribunal failed to accord procedural fairness to taxpayer's witness – taxpayer and witness on notice that reliability and authenticity of documentary evidence were challenged – no breach of procedural fairness – no breach of rule in Browne v Dunn – Tribunal's decision did not turn on documentary evidence – error, if any, was immaterial – primary judge did not err in dismissing taxpayer's appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – appeal dismissed INCOME TAX –Tribunal affirmed Commissioner's decision to treat payments made by 3D Scaffolding as dividend in Mr Docherty's hands under s 109C and Division 7A of the Income Tax Assessment Act 1936 (Cth) – Tribunal mistaken in finding Mr Docherty was sole director of 3D Scaffolding – whether Tribunal's error relevant and material – finding of Mr Docherty's control of 3D Scaffolding did not depend on mistake – application of section 109C and Division 7A did not depend on finding that Mr Docherty was sole director – no error in primary judge's decision – appeal dismissed Income Tax Assessment Act 1936 (Cth) Division 7A, s 109C Income Tax Assessment Act 1997 (Cth) s 8-1 Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 44 Re Kowalski and Military Rehabilitation and Compensation Commission (2007) 47 AAR 300; [2007] AATA 1988 cited Re Groom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 202 cited Sullivan v Department of Transport (1978) 1 ALD 383 cited Commissioner of Taxation v Metaskills Pty Ltd (2003) 130 FCR 248 discussed Hoskins v Repatriation Commission (1991) 32 FCR 443 referred to Browne v Dunn (1893) 6 R 67 discussed Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 referred to Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 463 referred to BTR PLC v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246 cited Klinkert v Australian Postal Corporation (1992) 16 AAR 86 cited Stead v State Government Insurance Commission (1986) 161 CLR 141 cited Stephens v T Pittas Ltd 56 TC 722 discussed MacFarlane v Commissioner of Taxation (1986) 13 FCR 356 referred to Kumagai Gumi Co Ltd v Commissioner of Taxation (1999) 90 FCR 274 cited Di Lorenzo Ceramics Pty Ltd v Federal Commissioner of Taxation (2007) 161 FCR 198 referred to 3D SCAFFOLDING PTY LIMITED v COMMISSIONER OF TAXATION NSD 1690 of 2008 JAMES DOCHERTY v COMMISSIONER OF TAXATION