Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
M W McIntosh Pty Limited v Commissioner of Taxation [2009] FCAFC 88
TAXATION – power of Commissioner to defer time within which an approved form is to be given under s 388-55 of Sch 1 of the Taxation Administration Act 1953 (Cth) – whether power extends to the period for giving Commissioner notice of the choice to consolidate a consolidatable group as provided in s 703-50(3) of the Income Tax Assessment Act 1997 (Cth) – the operation of s 703-50(3) does not contemplate nor evince a parliamentary intention for the exercise of a general discretionary power to apply to extend the period within which a choice to consolidate is to be made. HELD: the Commissioner does not have the power under s 388-55 to extend the time in which a choice to consolidate under s 703-50(3) is to be made. Taxation Administration Act 1953 (Cth) ss 286-75, 388-50 and 388-55 of Sch 1 Income Tax Assessment Act 1997 (Cth) ss 701-1, 703-50, Div 170, Subdiv 170-A New Business Tax System (Consolidation) Act (No. 1) 2002 (Cth) Items 37 and 38 of Sch 3 Income Tax Assessment Act 1936 (Cth) ss 80G, 166A A New Tax System (Tax Administration) Act (No. 2) 2000 (Cth) Corporations Act 2001 (Cth) ss 459G, 588FF(3) Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation (2008) 232 CLR 314referred to Australian Paper Manufacturers Limited v CIL Inc (1981) 148 CLR 551 considered BHP Billiton Direct Reduced Iron Pty Ltd v Deputy Commissioner of Taxation & Anor (2007) 67 ATR 578considered Bull v Attorney-General (NSW) (1913) 17 CLR 370 referred to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 referred to Gordon v Tolcher (in liq) (2006) 231 CLR 334 referred to Mitsui & Co Ltd v Hanwha (HK) Co Ltd (No. 2) (2007) 166 FCR 200 referred to Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 considered Re Bolton; ex parte Beane (1987) 162 CLR 514 cited Re News Corp Ltd (1987) 15 FCR 227 cited Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 referred to
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