Federal Court of Australia
RESTRICTED DISTRIBUTION
19%
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) OLD G9 of 1986 GENERAL DIVISION ) BETWEEN :
MARINA ESTATES PTY.LTD.
Applicant AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent SPENDER J 21 MAY 1986
PULING
Q consideration, I have reached the conclusion that the proper course for me to adopt is to decline to determine whether leave to appeal should or should not he granted and to direct that the application for leave to appeal from the judgment of Mc. Justice Enderby 1n the Supreme Court of New South Wales be heard
by a Full Court of the Federal Court.
The circumstances leading to this conclusion are these:
Marina Estates Pty.Ltd. lodged objections against
assessments in respect of income derived by it for the year
ending 30 June 1972 and for the period 1 July to 9 August 1972,
notices of which were issued on 15 August 1972. The objections were disallowed by the Commissioner, and the taxpayer requested that the decision be referred to a Board of Review. The Board of Review No.2 confirmed the assessments on 22 March 1984. The notices of objection contained many grounds, some being of fact and others of law. Pursuant to s.196(1) the taxpayer appealed to the Supreme Court from the decision of the Board. Section
196(1) of the Income Tax Assessment Act 1936 provides:-
"The Commissironer or the taxpayer may appeal to a Supreme Court from any decision of the Board that involves a question of law." The taxpayer appealed by a Notice of Appeal dated 3 May 1984, which was filed in the Supreme Court of Queensland on 31 May 1984. On 3 May 1985, Ryan J. of the Supreme Court of
Queensland made an order pursuant to s.184C of the Income Tax
Assessment Act transferring the matter to the Supreme Court of
New South Wales. The taxpayer then filed a Notice of Motion seeking to amend the Notice of Appeal, which was heard by Enderby J. on 20 December 1985. The broad purpose of the application to amend was to include grounds which had been set out in the original Notices of Objection but which had not been argued before the Board of Review. On that day his Honour refused the application. Other matters for his Honour's determination were
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