Commissioner of Taxation of the Commonwealth of Australia v Nilsen Porcelains (Australia) Pty Ltd & Ors Nilsens Broadcasting Service Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1979] FCA 101

CATCHWORDS

Appeal and cross appeals - nature of liability to make payments in respect of annual and long service leave — whether taxpayer entitled to benefit of deductions for anticipated

future payments.

Whether such payments losses and outgoings incurred in

gaining or producing assessable income - discrepancy between

s.51(1) test and standard accountancy practice - employer not

liable under award to pay on account of annual and long

service leave otherwise than when period of leave taken.

s.51(1) Income Tax Assessment Act, 1936 - Metal Industry Award 1971 - Metal Trades (Long Service Leave) Award, 1964. ;

ON APPEAL from the Supreme Court of Victoria

BETWEEN: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant

NILSEN PORCELAINS (AUSTRALIA) PTY. LIMITED NILSEN'S BROADCASTING SERVICE PTY. LIMITED NILSEN DEVELOPMENT LABORATORIES PLY. LIMITED

Respondents

AND

BETWEEN: NILSEN'S BROADCASTING SERVICE PTY. LIMITED NILSEN PORCELAINS (AUSTRALIA) PTY. LIMITED NILSEN DEVELOPMENT LABORATORIES PTY. LIMITED

Appellants AND : COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALTA Respondent

Nos. VG 37, 38, 39, 40, 41 and 42 of 1978.

Coram: Brennan, Deane and Fisher JJ.

Sydney

8 October, 1979.

IN THE FEDERAL COURT OF AUSTRALIA }

VICTORIA DISTRICT REGISTRY } 1978 No. VG 37 GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF VICTORIA

BETWEEN: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Appellant AND : NILSEN PORCELAINS PTY. LIMITED Respondent ORDER

JUDGES MAKING ORDER: Brennan, Deane and Fisher JJ.

DATE OF ORDER: 8 October, 1979

WHERE MADE: Sydney.

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order of the Supreme Court of Victoria be set

aside and in lieu thereof it be ordered that the appeal by Nilsen Porcelains (Australia) Pty. Lamited to that Court be dismissed and that the Commissioner's costs of and incidental to the appeal including any reserved costs be taxed and when taxed paid by Nilsen Porcelains (Australia) Pty. Limited to