Findlay, David Jellicoe v The Commissioner of Taxation of the Commonwealth of Australia [1998] FCA 574

FEDERAL COURT OF AUSTRALIA INCOME TAX ‑ Allowable deductions ‑ Contributions to superannuation fund ‑ Whether deductible ‑ Deduction available where taxpayer an "eligible person" ‑ Taxpayer eligible person unless during year of income it was "reasonable to expect" that superannuation benefits would be provided on retirement or death of taxpayer and to the extent to which those benefits would be attributable to year of income they would be attributable to "contributions made" by someone other than taxpayer or would be paid out of money that would not represent contributions made by taxpayer ‑ Whether taxpayer an "eligible person" ‑ Meaning of "reasonable to expect" ‑ Whether "contributions made" extended to contributions that it was reasonable to expect would be made. Income Tax Assessment Act 1936 ss 82AAS, 82AAT Superannuation Guaranteee Charge Act 1992 ss 5, 6 Superannuation Guarantee (Administration) Act 1992 ss 50, 65 Superannuation Guarantee (Administration) Regulations, reg 10.

Federal Commissioner of Taxation v McCabe (1990) 90 ATC 4968 mentioned Federal Commissioner of Taxation v Arklay (1989) 89 ATC 4563 mentioned DAVID JELLICOE FINDLAY v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA VG 236 OF 1997 SUNDBERG J 29 MAY 1998 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 236 of 1997

BETWEEN: david jellicoe findlay

Applicant

AND: the commissioner of taxation of the commonwealth of australia

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 29 MAY 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal be set aside. 2. The applicant's claim for a deduction of $45,750 in his taxation return for the year ended 30 June 1994 be allowed. 3. The respondent issue an amended assessment accordingly. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.