Ellison v Sandini Pty Ltd [2018] FCAFC 44

FEDERAL COURT OF AUSTRALIA

Ellison v Sandini Pty Ltd [2018] FCAFC 44 Appeal from: Sandini Pty Ltd v Commissioner of Taxation [2017] FCA 287 Sandini Pty Ltd v Commissioner of Taxation (No 2) [2017] FCA 905

File number(s): WAD 172 of 2017 WAD 173 of 2017

Judge(s): SIOPIS, LOGAN AND JAGOT JJ

Date of judgment: 27 March 2018

Catchwords: INCOME TAX – capital gains tax – roll over relief – whether Family Court order resulted in a change of ownership within the meaning of s 104-10 of the Income Tax Assessment Act 1997 (Cth) (the ITAA) – whether Family Court order constituted CGT event A1 as defined in 104-5 of the ITAA – whether the effect of Family Court order was such that the roll over relief provisions contained in Subdivision 126-A of the ITAA were engaged – whether primary judge erred in holding that a change of ownership had occurred as a result of the deeming provision contained in s 103-10 of the ITAA EQUITY – unnumbered and uncertificated shares in public company – creation of trust over part of shareholding by Family Court order - beneficial ownership – requirement for certainty of subject of trust – shares as a fungible asset

Legislation: Constitution s 75 Bankruptcy Act 1966 (Cth) s 121 Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Company Law Review Act 1988 (Cth) Corporations Act 2001 (Cth) ss 768A, 1070A, 1070B Family Law Act 1975 (Cth) ss 35, 78, 79, 79A, 106A Income Tax Assessment Act 1936 (Cth) s 160ZZMA Income Tax Assessment Act 1997 (Cth) ss 103-10, 104-1, 104-5, 104-10, 116-20, 121-20, 124-85, 124-90, 124-95, 126-1, 126-5, 126-15, 995-1 Judiciary Act 1903 (Cth) ss 38, 39, 39B Taxation Administration Act 1953 (Cth) Taxation Laws Amendment Act 1989 (Cth) Tax Law Improvement Act (No 1) 1998 (Cth) Family Law Rules 2004 (Cth) r 20.07 Explanatory Memorandum, Tax Law Improvement Act (No 1) 1998 (Cth)