Ward v Commissioner of Taxation [2016] FCAFC 132

FEDERAL COURT OF AUSTRALIA

Ward v Commissioner of Taxation [2016] FCAFC 132 Appeal from: Ward and Commissioner of Taxation [2015] AATA 919

File number: ACD 141 of 2015

Judges: ROBERTSON, DAVIES AND Wigney JJ

Date of judgment: 5 October 2016

Catchwords: ADMINISTRATIVE LAW – appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) on a question of law – whether Tribunal misconstrued the scope of the expression "special circumstances" in s 292-465 of the Income Tax Assessment Act 1997 (Cth) – whether Tribunal erred in considering that making the determination was consistent with the object of Div 292 of the Income Tax Assessment Act 1997 (Cth) TAXATION – non-concessional contributions to superannuation fund – application to Commissioner for a written determination the non-concessional contributions be disregarded or allocated instead for the purposes of another financial year specified in the determination – whether Tribunal erred in considering there were no special circumstances – whether Tribunal erred in considering that making the determination was consistent with the object of Div 292 of the Income Tax Assessment Act 1997 (Cth) PRACTICE AND PROCEDURE – whether leave should be granted to the applicant to rely on grounds not advanced before the Tribunal

Legislation: Acts Interpretation Act 1901 (Cth) s 15AC Administrative Appeals Tribunal Act 1975 (Cth) s 44 Income Tax Assessment Act 1997 (Cth) Div 292, ss 292-5, 292-465

Cases cited: Commissioner of Taxation v Dowling [2014] FCA 252 Commissioner of Taxation v Rozman [2010] FCA 324; 186 FCR 1 Groth v Secretary, Department of Social Security (1995) 40 ALD 541 Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 Liwszyc v Commissioner of Taxation [2014] FCA 112; 218 FCR 334 Lynton and Commissioner of Taxation [2012] AATA 667; 90 ATR 950 Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 Player v Commissioner of Taxation [2011] FCA 869; 84 ATR 541 Quality Publications Australia Pty Ltd v Federal Commissioner of Taxation [2012] FCA 256; 202 FCR 574 Repatriation Commission v Warren [2008] FCAFC 64; 167 FCR 511