NOT FOR iS} uUTIO No. G69 of 1987 —~ewe ww ON APPEAL from the Taxation Appeals Division of the Administrative Appeals Tribunal constituted by Dr. P. Gerber and Mr. K. L. Beddoe BETWEEN : HAPF, - LIM Applicant AND: MMISSTO OF TAXATION Respondent MI OF _ ORDER JUDGE: FOX J. OF ORDER: 14 May 1987 WHERE MADE: Sydney. THE COURT ORDERS THAT: 1. The application for an extension of time for the filing and serving of a notice of appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. NOT FOR STRIBUTION N Q OF _AUS ) ) 30 ct ) No. G69 of 1987 ) ) ON APPEAL from the Taxation Appeals Division of the Administrative Appeals Tribunal constituted by Dr. P.Gerber and Mr. K.L. Beddoe BETWEEN: HAPFAM PTY. LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent CORAM: FOX J. DATE: 14 MAY 1987 REASONS FOR JUDGMENT EX TEMPORE FOX J. This is an application for an extension of time in which to file a notice of appeal to this Court from a decision of the Administrative Appeals Tribunal dealing with a taxation reference. The decision in question was delivered on 10 November 1986, but the letter enclosing it, which was sent on that day, was not received by the applicant until 17 November. The principal of the applicant was then overseas and did not return until 26 November 1986 and there was then the necessity of considering the matter and getting legal advice which was not forthcoming until early February 1987, at which time a decision was made. The present application was filed on 17 February 1987, that is, two months after the expiry of the stipulated time. There were no grounds beyond the matters mentioned as to why the discretion of the Court should be exercised.in favour of the applicant. In particular, no submissions were made by the applicant on the likelihood of success of an appeal. The appeal to this Court from the Administrative Appeals Tribunal in taxation matters is the same as with appeals generally from that Tribunal, namely on a question of law only. In the present case the applicant claimed an investment allowance deduction under Division 3, Subdivision B of the Income pk 8 t. 936 in respect of an amount of $20,600 which was spent on the erection of a glasshouse, used for plant propagation. The tribunal regarded the principal issue as one whether the glasshouse was a "structural improvement" within the meaning of s.82AE of the Act and there is nothing to show that they were in error in so doing. That the glasshouse was an item of plant within the meaning of s.54 of the Act has not been disputed. It seems to me plain enough that if s.83AE is applied on the footing that the glasshouse does not fall within the exceptions itemised in sub-paragraphs§ (b)(i) to (vi), it is ineligible for the investment allowance under Subdivision B. Whether it is, or is not, a "structural improvement" and whether it does, or does not, fall within any of the sub-paragraphs which I have mentioned, was treated before the Tribunal as a question of fact and so far as I can see was simply a question of fact. It is my view, on the evidence, that the glasshouse was a "structural improvement" and therefore that it was not eligible for investment allowance. As I have said, the decision that the glasshouse was a "structural improvement", in the context of what the tribunal decided and what has been put to me, seems to be substantially a question of fact. At all events, I am not satisfied it is otherwise. Being a "structural improvement", the glasshouse clearly fails to satisfy the particular sub-paragraphs of para.82AE(b) and in the terms of the opening words of that section, Subdivision B of the Act does not apply in relation to it. In the circumstances it seems to me that leave should be refused and this I do. The order is that the application be refused and that the applicant pay the respondent's costs. I certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice > Associate oe Dated: 14 May 19 * Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Date of hearing: Date Judgment delivered: Mr A.B.K. Lewis Messrs A.S.Lamrock & Son Mr B.A. Coles Australian Government Solicitor 14 May 1987 14 May 1987