Pepsico Australia Pty Ltd v Commissioner of Taxation [1997] FCA 635

FEDERAL COURT OF AUSTRALIA SALES TAX - exemptions and credits - business inputs - registered taxpayer acquires sales tax paid on dough-mixer used in making pizzas - whether mixer used in carrying out activity covered by Item 18 of Sales Tax Assessment Act 1992 (Cth)- meaning of "activity covered by" considered - scheme of Act in exemption from sales tax business inputs or providing credit for sales tax borne on business inputs at the time of purchase considered - meaning of s 52 of Act considered - whether s 52(b) applies to taxpayer who is registered. Sales Tax Assessment Act 1992 (Cth), Schedule 1, Tables 1 and 3 and ss 5, 16, 24, 29, 52 and 82 Sales Tax (Exemptions and Classifications) Act 1992 (Cth), ss 11 and 12 Sales Tax Assessment Act (No. 1) 1930 (Cth), ss 12 and 18 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, applied and distinguished Saraswati v The Queen (1991) 172 CLR 1, applied Attorney-General (NSW) v The Collector of Customs (NSW) (1908) 5 CLR 818, distinguished Federal Commissioner of Taxation v Sherritt Gordon Mines Ltd (1977) 137 CLR 612, applied PEPSICO AUSTRALIA PTY LTD v COMMISSIONER OF TAXATION NG 634 - 636 of 1995 HILL J SYDNEY 16 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 634-636 of 1995 ) GENERAL DIVISION )

BETWEEN: PEPSICO AUSTRALIA PTY LIMITED

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: HILL J PLACE: SYDNEY DATED: 16 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. Question separately reserved for trial, namely: "Has the applicant satisfied the requirements of column 3 of Credit Ground CR7 in Table 3, Schedule 1, to the Sales Tax Assessment Act 1992 in relation to its application for a credit of sales tax borne by the Applicant in respect of the following goods: Hobart D340 Dough-Mixer, the subject of invoice number 608958 from Polytek to the Applicant dated 26 February 1993." be answered NO. 2. The applicant pay the respondent's costs of the separate question reserved for trial. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.