Dingwall, K. v Commissioner of Taxation [1995] FCA 431

C A T C H W O R D S INCOME TAX - Capital gains tax - disposal of partly paid shares - method of calculating cost base - whether it includes amount of uncalled capital and unpaid premium. Income Tax Assessment Act 1936 (Cth) Ss26AAC, 160ZYI, 160ZH

Ex parte Canwell (1864) 4 De G J & S 539 (46 ER 1028) Buck v Robson (1870) 10 L.R. Eq 629 Re The Peter Lalor Home Building Co-operative Society Limited(in liquidation): Tuckman v Dunlop [1958] VR 165 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 Taylor v Commissioner of Taxation (1987) 16 FCR 212 Smith v National Coal Board [1967] 2 All ER 593 Milligans & Sons Pty Ltd v Chief Commissioner of Land Tax (NSW) (1986) 17 ATR 994 Niemann v Smedley [1973] VR 769 KENNETH DINGWALL Applicant - and - COMMISSIONER OF TAXATION Respondent O'LOUGHLIN J. ADELAIDE 9 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) ) GENERAL DIVISION ) No. SG 67 of 1992

B E T W E E N: KENNETH DINGWALL Applicant - and - COMMISSIONER OF TAXATION Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER : O'LOUGHLIN J. WHERE MADE : ADELAIDE DATE OF ORDER : 9 JUNE 1995 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) ) GENERAL DIVISION ) No. SG 67 of 1992

B E T W E E N: KENNETH DINGWALL Applicant - and - COMMISSIONER OF TAXATION Respondent REASONS FOR JUDGMENT Coram: O'Loughlin J. Place: Adelaide Date : 9 June 1995

The applicant, Kenneth Dingwall, ("the taxpayer") objected against the assessment of income tax based on income allegedly derived by him during the year of income ended 30 June 1990 ("the year of income"). The relevant assessment issued to the taxpayer by notice of assessment dated 25 September 1991. The source of conflict between the taxpayer and the respondent, the Commissioner of Taxation, ("the Commissioner") was the inclusion in the assessable income of the taxpayer for the year of income of the sum of $616,699. That sum was based upon the manner in which the Commissioner reacted to a claim by the taxpayer that capital gains made by him in the year of income should be offset by alleged capital losses of $892,750. It was the case for the Commissioner that no such losses had been suffered by the taxpayer.