W. & J. Investments Ltd v. The Commissioner of Taxation of the Commonwealth of Australia [1987] FCA 467

467 2

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G624 of 1986 ) GENERAL DIVISION ) BETWEEN: W. & J. INVESTMENTS LTD. Appellant AND: THE COMMISSIONER OF TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

MINUTES OF ORDER

Court: Beaumont, Burchett and Einfeld JJ. Date order made: 28 August 1987 Where made: Sydney

THE COURT ORDERS:

1. Appeal allowed.

2. Orders of the Supreme Court of New South Wales set aside; a new trial ordered.

3. No order as to costs of the hearing in the Supreme Court or of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

) NEW SOUTH WALES DISTRICT REGISTRY ) No. G624 of 1986

) GENERAL DIVISION )

BETWEEN : W. & J. INVESTMENTS LTD. Appellant AND: THE COMMISSIONER OF TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM: Beaumont, Burchett and Einfeld JJ.

PLACE: Sydney

DATED: 28 August 1987

REASONS FOR JUDGMENT

BEAUMONT J. W. & J. Investments Ltd. appeals from orders made by a Judge of the Supreme Court of New South Wales dismissing its appeal against the Commissioner's assessment of the income tax payable by it in respect of the year of income ended 30 June 1979. The appeal raises for determination the proper construction of the "investment allowance" provisions (ss.82AA and 82AB in Subdivision B of Division 3 of Part III) of the Income Tax Assessment Act 1936 ("the Act") as they stood in

1979. They may be summarised, so far as relevant, as follows:

(1)

(2)

(3)

2.

Subdivision B applies in relation to a unit of eligible property acquired by a taxpayer that 1s a "leasing company", for use wholly and exclusively in Australia and for the purpose of producing assessable income, by another person to whom the taxpayer has, on or after 1 January 1976, leased the eligible property under a long-term lease agreement that was entered into by the taxpayer in the course of carrying on business in Australia and was so entered into by the taxpayer and