Healey v Commissioner of Taxation [2012] FCAFC 194

FEDERAL COURT OF AUSTRALIA

Healey v Commissioner of Taxation [2012] FCAFC 194 Citation: Healey v Commissioner of Taxation [2012] FCAFC 194

Appeal from: Healey v Commissioner of Taxation [2012] FCA 269

Parties: CARINA HEALEY v COMMISSIONER OF TAXATION

File number: WAD 102 of 2012

Judges: LANDER, SIOPIS & GILMOUR JJ

Date of judgment: 21 December 2012

Catchwords: INCOME TAX – appeal from a single judge of this Court dismissing an appeal by the appellant from income tax assessment and administrative penalty assessment for failure to lodge tax returns - whether the primary judge erred in concluding that the appellant had failed to discharge her onus in proving that the transaction was not at arm's length - whether the appellant should have called a witness who would have been able to give evidence as to the relationship between the relevant parties - whether it could be inferred that there was a reason for not calling the witness - whether there was sufficient evidence in the documents themselves to show that the parties were not acting at arm's length – whether the primary judge erred in concluding that the appellant had failed to discharge her onus in proving what was the market value of the shares

Legislation: Income Tax Assessment Act 1936 (Cth) s 167 Taxation Administration Act 1953 (Cth) s 14ZZO(a) & (b) Income Tax Assessment Act 1997 (Cth) ss 100-35, Div 102, 102-20, 102-25, 104-60(1) & (3), 108-5, 104-10(1), 109-5, 112-20(1)(c), 995-1

Cases cited: CGU Insurance Limited v One.Tel Limited (In Liquidation) [2010] HCA 26 Commissioner of Taxation for the Commonwealth of Australia v Dalco (1990) 168 CLR 614 Commissioner of Taxation of the Commonwealth of Australia v BHP Billiton Ltd (2011) 244 CLR 325 Cook's Construction Pty Ltd v Brown and Another (as liqs of DML Resources Pty Ltd (in liq)) (2004) 49 ACSR 62 Danmark Pty Ltd v Federal Commissioner of Taxation; Forestwood Pty Ltd v Federal Commissioner of Taxation (1944) 7 ATD 333 Federal Commissioner of Taxation v AXA Asia Pacific Holdings Ltd (2010) 189 FCR 204 Jones v Dunkel (1959) 101 CLR 298 Spencer v The Commonwealth of Australia (1907) 5 CLR 418