Commissioner of Taxation v. Kosciusko Thredbo Pty Ltd [1985] FCA 622

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CATCHWORDS

INCOME TAX - Leasehold interests - Claim for deduction in respect of amortisation of improvements - Lease entered into before 22 October 1964 - Whether consent of lessor to the making of the improvements was given in the lease itself - Whether lessor agreed in the lease to consent to the improvements.

Income Tax Assessment Act 1936 ss. 83AA(2), 87, 88.

Kosciusko State Park Act 1944 (N.S.W.)ss.4, 5, 10,11.

G.J. Coles and Coy. Limited v. Federal Commissioner of Taxation (1975) 132 C.L.R. 242 referred to.

BOWEN Cd, TOOHEY and WILCOX Ju.

13 DECEMBER 1985 SYDNEY

COMMISSIONER OF TAXATION V KOSCIUSKO THREDBO PTY LIMITED

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) G447 of 1984 GENERAL DIVISION )

BETWEEN : THE COMMTSSTONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Appellant

AND: KOSCIUSKO THREDBO PIV. LIMITED

Respondent

BETWEEN : KOSCIUSKO THREDBO PTY. LIMITED

Cross-Appellant

AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Cross-Respondent

JUDGES MAKING THE ORDERS: BOWEN C.J., TOOHEY and WILCOX JJ. DATE OF ORDERS: 18 DECEMBER 1985 WHERE MADE: SYDNEY

MINUTE OF ORDERS:

THE COURT HEREBY ORDERS THAT:

1. The appeal of the Commissioner of Taxation be allowed.

2. The order of the Supreme Court of New South Wales in matter No. 691 of 1982 be amended:

{a) by omitting therefrom sub paragraph (a) of paragraph 1;

(b) by omitting therefrom paragraph 2; and (c) by substituting therein new paragraphs 2 and 3 reading as follow:

"2. The Respondent pay the Appellant's costs incurred in relation to so much of the appeal as concerned the claims by the Appellant in relation to which the Appellant has been successful.

3. The Appellant pay the Respondents' costs incurred in relation to so much of the appeal as concerned the claims by the Appellant in relation to which the Appellant has not been successful."