B&F Investments Pty Ltd as trustee for the Illuka Park Trust v Commissioner of Taxation [2023] FCAFC 89

FEDERAL COURT OF AUSTRALIA

B&F Investments Pty Ltd as trustee for the Illuka Park Trust v Commissioner of Taxation [2023] FCAFC 89 Appeal from: BBlood Enterprises Pty Ltd v Commissioner of Taxation [2022] FCA 1112

File numbers: VID 610 of 2022 VID 613 of 2022

Judgment of: MOSHINSKY, COLVIN and HESPE JJ

Date of judgment: 9 June 2023

Catchwords: TAXATION – where primary judge held that s 100A of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) applied to deny beneficiary's present entitlement – whether primary judge erred in construing s 100A(8) of the ITAA 1936 – where primary judge found in the alternative that s 207-150 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) applied – whether primary judge erred in concluding that a distribution was taken to be made as part of a dividend stripping operation within the meaning of s 207-155 of the ITAA 1997 – alternative assessments – whether primary judge erred in dismissing beneficiary's application having concluded that s 100A of the ITAA 1936 applied

Legislation: Income Tax Assessment Act 1936 (Cth) ss 100A, 177C, 177E Income Tax Assessment Act 1997 (Cth) ss 207‑50, 207-150, 207-155 Taxation Administration Act 1953 (Cth) s 14ZZO

Cases cited: Bell v Federal Commissioner of Taxation (1953) 87 CLR 548 Commissioner of Taxation v Patcorp Investments Limited (1976) 140 CLR 247 Commissioner of Taxation v Prestige Motors Pty Ltd [1998] FCA 221; (1998) 82 FCR 195 Commissioner of Taxation v Consolidated Press Holdings Ltd (No 1) [1999] FCA 1199; (1999) 91 FCR 524 Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29; (1988) 165 CLR 55 East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 20 ATR 1623 Federal Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32; (2001) 207 CLR 235 Federal Commissioner of Taxation v Ellers Motor Sales Pty Ltd (1972) 128 CLR 602 Federal Commissioner of Taxation v Ludekens [2013] FCAFC 100; (2013) 214 FCR 149 Federal Commissioner of Taxation v Peabody [1994] HCA 43; (1994) 181 CLR 359 Hancock v Federal Commissioner of Taxation (1961) 108 CLR 258 Hart v Commissioner of Taxation [2002] FCAFC 222; (2002) 121 FCR 206 Investment and Merchant Finance Corporation Ltd v Federal Commissioner of Taxation (1970) 120 CLR 177 Lawrence v Federal Commissioner of Taxation [2009] FCAFC 29; (2009) 175 FCR 277 Newton v Federal Commissioner of Taxation [1958] AC 450; (1958) 98 CLR 1 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 Sea Shepherd Australia Ltd v Federal Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252