Barnsdall, D.G. & Anor v. Commissioner of Taxation [1988] FCA 291

JUDGMENT No, FAY. L BB rane

CATCHWORDS

INCOME TAX - appeals concerning assessment of income tax - whether profit on disposal of shares should have been included under s.26AAA of the Act - whether transaction involved "dealing with each other at arm's length" - the nature of a taxation appeal - whether rebate claimed under s.160AAA should

have been allowed - meaning of "profit"

Income Tax Assessment Act 1936 (Cth) - 5.26AAA, s.160ACA

DAVID G. BARNSDALL, EXECUTOR OF THE ESTATE OF THE LATE PETER

CORONELL HAINS v. COMMISSIONER OF TAXATION No. NG 2485 of 1987

Davies J. 10 June 1988 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 2485 of 1987 )

GENERAL DIVISION )

BETWEEN: DAVID G. BARNSDALL, EXECUTOR OF THE ESTATE OF THE LATE PETER CORONELL HAINS

Applicant

AND: COMMISSIONER OF TAXATION

Respondent CORAM: Davies J. DATE: 10 June 1988 PLACE: Sydney MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal with respect to the s.26AAA profit be dismissed. 2. The appeal with respect to the disallowance of the s.160ACA rebate be upheld. 3. The matter is remitted to the respondent with the

direction that the subject assessment of income tax be amended in accordance with the Court's reasons for judgment.

4. The respondent pay one-half of the applicant's costs of the proceedings.

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. NG 2485 of 1987

Swe

GENERAL DIVISION

BETWEEN: DAVID G. BARNSDALL, EXECUTOR OF THE ESTATE OF THE LATE PETER CORONELL HAINS

Applicant

ig

COMMISSIONER OF TAXATION

Respondent

CORAM: Davies J. DATE: | 10 June 1988 PLACE: Sydney

REASONS FOR JUDGMENT

These appeals relate to items in an assessment of income tax dated 3 April 1980 and in an amended assessment of income tax dated 20 October 1980, both with respect to the income of the late Peter Coronell Hains for the year ended 30 June 1979. The notice of objection to the original assessment, dated 2 June 1980, was partly allowed by the amended assessment which issued on 20 October 1980. A further objection to the amended assessment, which objection was dated 4 December 1980, was wholly disallowed. By a notice dated 4 December 1980, Mr Hains requested that his objection to the original assessment be treated as an appeal and forwarded to the Supreme Court of New