Berkeley Commercial Co Pty Ltd v Commissioner of Taxation of the Commonweatlh of Australia [1997] FCA 733

FEDERAL COURT OF AUSTRALIA

INCOME TAX - appeal from Administrative Appeals Tribunal - investment allowance - lease by leasing company to taxpayer and sub-lease to related company - whether sub-lease pursuant to contract or arrangement with related company made while lease was in force Income Tax Assessment Act 1936 (Cth) s 82AG(3)(d) Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 Dithelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 Hope v Bathurst City Council (1980) 144 CLR 1 BERKELEY COMMERCIAL CO PTY LTD v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA NO'S VG 626, 627 and 628 of 1996 HEEREY J MELBOURNE 8 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) Nos VG 626, 627 and 628 of 1996 ) GENERAL DIVISION )

ON APPEAL FROM THE TAXATION APPEALS DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT

G L McDONALD, MR B H PASCOE, SENIOR MEMBER AND MR W L McLEAN, MEMBER

BETWEEN: BERKELEY COMMERCIAL CO PTY LTD

Applicant

AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: HEEREY J PLACE: MELBOURNE DATE: 8 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. Appeal allowed. 2. Decision of the Administrative Appeals Tribunal dated 12 December 1996 insofar as it concerns the matters the subject of this appeal be set aside. 3. Direct the matters the subject of this appeal be remitted to the Tribunal for determination in accordance with these reasons. 4. Respondent pay the applicant's costs to be taxed, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.