Allen (Trustee), in the matter of Allen's Asphalt Staff Superannuation Fund v Commissioner of Taxation [2011] FCAFC 118

FEDERAL COURT OF AUSTRALIA

Allen (Trustee), in the matter of Allen's Asphalt Staff Superannuation Fund v Commissioner of Taxation [2011] FCAFC 118 Citation: Allen (Trustee), in the matter of Allen's Asphalt Staff Superannuation Fund v Commissioner of Taxation [2011] FCAFC 118

Appeal from: Allen (Trustee), in the matter of Allen's Asphalt Staff Superannuation Fund v Commissioner of Taxation [2010] FCA 1276

Parties: BRADLEY ALLEN AND ANITA ALLEN IN THEIR CAPACITY AS TRUSTEES FOR THE ALLEN'S ASPHALT STAFF SUPERANNUATION FUND v COMMISSIONER OF TAXATION

File number(s): QUD 564 of 2010

Judges: KEANE CJ, GREENWOOD AND MIDDLETON JJ

Date of judgment: 7 September 2011

Date of corrigendum: 21 September 2011

Catchwords: TAXATION – appeal from objection decision made by the Commissioner of Taxation – disallowance by Commissioner of objection against amended assessment and penalty assessment – appellant trustee of complying superannuation fund – failure of appellant to declare distribution from trustee of fixed trust to superannuation fund as "special income" – whether "income derived" is restricted to income according to ordinary concepts or whether it extends to statutory income – whether the superannuation fund "acquired" a fixed entitlement to income, or derived income, under an "arrangement" – whether there were parties to arrangement who were not "dealing" with each other at arm's length in relation to arrangement – whether amount of income derived was greater than might have been expected to have been derived if parties had been dealing with each other at arm's length – whether penalty assessment correctly imposed – whether applicant had a reasonably arguable case