D Marks Partnership by its General Partner Quintaste Pty Ltd v Commissioner of Taxation [2016] FCAFC 86

FEDERAL COURT OF AUSTRALIA

D Marks Partnership by its General Partner Quintaste Pty Ltd v Commissioner of Taxation [2016] FCAFC 86 Appeal from: D Marks Partnership and Commissioner of Taxation (Taxation) [2015] AATA 651

File number: QUD 896 of 2015

Judges: LOGAN, GRIFFITHS AND PAGONE JJ

Date of judgment: 22 June 2016

Catchwords: PARTNERSHIP – limited partnership – certificate of registration of limited partnership – whether certificate conclusive evidence of formation of limited partnership – whether necessary for partnership to exist before registration – general law partnership TAXATION – dividends – franking credits – debt and equity interests – whether debt interest or equity interest – whether financial benefit provided under scheme – whether effectively non-contingent obligation under scheme to provide financial benefit TAXATION – administrative penalty – whether position of taxpayer reasonably arguable – whether it would be concluded that what is argued for is about as likely as not correct

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 43(2B) Companies (Queensland) Code s 549 Companies Act 1900 (UK) s 1 Constitution Corporations Act 2001 (Cth) s 1389 Federal Court of Australia Act 1976 (Cth), s 31A Income Tax Assessment Act 1936 (Cth) ss 82AAE, 92, 94D, 94D(1), 94J, 109D, 222C, 226K, 226(2), 226(3) Income Tax Assessment Act 1997 (Cth) ss 974-70, 974-75, 974-5(4), 974-20, 974-20(1)(b), 974-20(1)(c), 974-160, 995-1, Judiciary Act 1903 (Cth) s 79(1) Limited Partnerships Act 1907 (UK) ss 8(4)(a), 8C New Business Tax System (Debt and Equity) Bill 2001 (Cth), Explanatory Memorandum Partnership (Limited Liability) Act 1988 (Qld) s 4(1), 4(2), 8(3), 8(4), 10, 23A Partnership Act 1891 (Qld) s 5 Tax Laws Amendment (Improvements to Self Assessment) Act (No 1) 2005 (Cth) Taxation Administration Act 1953 (Cth) Sch 1, ss 284-15, 284-15(1), 284-15(3), 285-75(1), 284-75(2), 284-80, 284-90