Batchelor v Commissioner of Taxation [2014] FCAFC 41

FEDERAL COURT OF AUSTRALIA

Batchelor v Commissioner of Taxation [2014] FCAFC 41 Citation: Batchelor v Commissioner of Taxation [2014] FCAFC 41

Appeal from: Batchelor v Commissioner of Taxation [2013] AATA 93

Parties: CAROLINE BATCHELOR v COMMISSIONER OF TAXATION

File number: NSD 442 of 2013

Judges: EDMONDS, PAGONE and wigney JJ

Date of judgment: 3 April 2014

Catchwords: INCOME TAX – appeal from Administrative Appeals Tribunal – hearing before and decision of Tribunal conducted and decided upon assumptions not justified on the facts – whether amount received by the applicant as refund of her contribution to deposit paid by partnership of which she was a member was "by way of insurance or indemnity" within para (a) of s 20-20(2) of the Income Tax Assessment Act 1997 (Cth) ("1997 Act") (successor to s 26(j) of Income Tax Assessment Act 1936 (Cth) – whether para (b) of s 20-20(2) of 1997 Act requires loss or outgoing recouped to be properly allowable under the statute not just allowable as a matter of administrative concession – whether s 110-45(2)(a) of the 1997 Act excluded from the cost base of an asset the subject of a CGI event an amount erroneously allowed as a deduction – whether there was a failure of the Tribunal to exercise its jurisdiction by failing to affirm decision under review rather than purporting to vary it – Tribunal's decision set aside and proceeding remitted for re-determination

Legislation: Administrative Appeals Tribunal Act 1977 (Cth) s 43 Income Tax Assessment Act 1936 (Cth) ss 26(j), 92(2) Income Tax Assessment Act 1997 (Cth) ss 20-20(2), 20-25(1), 104-10, 104-25, 110-45(2)