Intoll Management Pty Ltd v Commissioner of Taxation [2012] FCAFC 179

FEDERAL COURT OF AUSTRALIA

Intoll Management Pty Ltd v Commissioner of Taxation [2012] FCAFC 179 Citation: Intoll Management Pty Ltd v Commissioner of Taxation [2012] FCAFC 179

Parties: INTOLL MANAGEMENT PTY LTD ACN 072 609 271 v COMMISSIONER OF TAXATION

File number: NSD 567 of 2012

Judges: EDMONDS, MCKERRACHER AND JAGOT JJ

Date of judgment: 11 December 2012

Catchwords: INCOME TAX – dividends paid by companies incorporated in Luxembourg to Australian resident unit trust being an Australian public trading trust for the purposes of Div 6C of Pt III of Income Tax Assessment Act 1936 (Cth) which had chosen to form a tax consolidated group for the purposes of Pt 3-90 of Income Tax Assessment Act 1997 (Cth) with trust as head company of the consolidated group – effect of choice on beneficial ownership of assets and derivation of income – whether assessable income under s 44 of Income Tax Assessment Act 1936 (Cth) or non-assessable, non-exempt income under s 23AJ of that Act

Legislation: Taxation Administration Act 1953 (Cth) s 357-60 Income Tax Assessment Act 1997 (Cth) Pt 3-90, ss 701-1, 703-5, 703-15, 703-30, 703-45, 703-50, 713-125, 713-130, 713-135, 713-140 Income Tax Assessment Act 1936 (Cth) Div 6C, ss 6(1), 23AJ, 44, 95, 96, 98, 99, 99A, 102S, 160AFB, 317

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 applied Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 applied Countess of Bective v Commissioner of Taxation (1932) 47 CLR 417 cited Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 cited Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 cited Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 applied