Commissioner of Taxation v Futuris Corporation Limited [2012] FCAFC 32

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Futuris Corporation Limited [2012] FCAFC 32 Citation: Commissioner of Taxation v Futuris Corporation Limited [2012] FCAFC 32

Appeal from: Futuris Corporation Limited ACN 004 336 636 v Commissioner of Taxation [2010] FCA 935

Parties: COMMISSIONER OF TAXATION v FUTURIS CORPORATION LIMITED

File number: SAD 139 of 2010

Judges: KENNY, STONE AND LOGAN JJ

Date of judgment: 19 March 2012

Catchwords: TAXATION – Part IVA Income Tax Assessment Act 1936 (Cth) – disposal of building services division of taxpayer corporate group – whether disposal involved a scheme in connection with which the taxpayer obtained a tax benefit within s 177C(1)(a) and s 177D(a) of the Act – whether absent the scheme taxpayer would, as a matter of reasonable expectation, have carried out disposal of building services division in a manner such that amount of alleged tax benefit would not have been included in its assessable income – onus on taxpayer to prove assessment excessive s 14ZZO Taxation Administration Act 1953 (Cth) – taxpayer may attempt to discharge onus in its own way – whether expert evidence led by taxpayer as to alternative scenario "sufficiently reliable for it to be regarded as reasonable" – Court will decide if onus has been discharged having regard to all the evidence

Legislation: Income Tax Assessment Act 1936 (Cth) Part IIIA Division 19A, Part IVA , ss 177B(1), 177C(1), 177C(1)(a), 177D(a), 177D(b), 177F, 160ZZO Taxation Administration Act 1953 (Cth) s 14ZZO

Cases cited: Commissioner of Taxation v Consolidated Press Holdings Ltd (No 1) (1999) 91 FCR 524 Commissioner of Taxation v Hart (2004) 217 CLR 216 Commissioner of Taxation v Trail Bros Steel & Plastic Ltd (2009) 75 ATR 916 Federal Commissioner of Taxation v Lenzo (2008) 167 FCR 255 Federal Commissioner of Taxation v Peabody (1994) 181 CLR 359 Federal Commissioner of Taxation v Spotless Services Limited (1986) 186 CLR 404 Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410 Futuris Corporation Limited (ACN 004 336 636) v Commissioner of Taxation (2009) 75 ATR 365 Futuris Corporation Limited ACN 004 336 636 v Commissioner of Taxation (2010) 80 ATR 330 Explanatory Memorandum to the Taxation Laws Amendment Bill (No 6)1990 (Cth) Second Reading Speech in the House of Representatives on the Bill for the Taxation Laws Amendment Act 1991 (Cth) Date of hearing: 21 and 22 February 2011