Kelly v Commissioner of Taxation [2013] FCAFC 88

FEDERAL COURT OF AUSTRALIA

Kelly v Commissioner of Taxation [2013] FCAFC 88 Citation: Kelly v Commissioner of Taxation [2013] FCAFC 88

Appeal from: Kelly v Commissioner of Taxation [2012] FCA 423; Kelly v Commissioner of Taxation (No 2) [2012] FCA 689

Parties: SEAN KELLY v COMMISSIONER OF TAXATION; COMMISSIONER OF TAXATION v SEAN KELLY

File number(s): QUD 361 of 2012

Judge(s): LANDER, SIOPIS, GILMOUR JJ

Date of judgment: 8 August 2013

Catchwords: TAXATION – the taxpayer was a partner in a law firm - whether the taxpayer had assigned a portion of his partnership interest to two trusts – a retiring partner purported to assign a partnership interest - whether the assignment was effective in respect of the reconstituted partnership - whether the partners in the reconstituted partnership had declared trusts over portion of their partnership interests – the taxpayer and his wife were directors of a company which acted as trustee of a family trust – the family trust claimed a deduction for superannuation in respect of the taxpayer and his wife – whether the taxpayer and his wife were "employees" for the purpose of s 290-60 of the Income Tax Assessment Act 1997 (Cth).

Legislation: Taxation Administration Act 1953 (Cth) ss 14ZYA(3), 14ZZO(a) Income Tax Assessment Act 1936 (Cth) ss 95, 96, 97 Income Tax Assessment Act 1997 (Cth) ss 290-60, 290-65, 290-70, 290-70(aa), 960-100 Superannuation Guarantee (Administration) Act 1992 (Cth) ss 11(1)(b), 12, 12(2) Corporations Act 2001 (Cth) ss 140, 202A(1) Property Law Act 1974 (Qld) s 11(1)(c)