Scully, Lynette C. v Commissioner of Taxation [1998] FCA 688

FEDERAL COURT OF AUSTRALIA TAXATION AND REVENUE - assessment of income - whether lump sum payment received by member of superannuation fund for total and permanent disability was an "eligible termination payment" within s 27 A(1) of the Income Tax Assessment Act 1936 (Cth) - whether payment falls within the exclusion in s 27A(1)(n) of the Act - whether payment constituted "consideration" under the Act "in respect of" personal injury - whether phrase "in respect of" requires a necessary connection between payment and personal injury

WORDS AND PHRASES - meaning of "consideration" and "in respect of" considered Income Tax Assessment Act 1936 (Cth) ss 27A(1) (a), (b), (n), 27G Commissioner of Taxation v Holmes (1995) 58 FCR 151 mentioned Imperial Group Trust v Imperial Tobacco Ltd (1991) 1 WLR 589 mentioned Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 mentioned Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 mentioned Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 47 applied LYNETTE C. SCULLY v COMMISSIONER OF TAXATION VG 577 of 1997 RYAN, TAMBERLIN AND FINKELSTEIN JJ MELBOURNE 19 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY VG 577 of 1997

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

BETWEEN: LYNETTE C. SCULLY

Appellant

AND: COMMISSIONER OF TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

JUDGES: RYAN, TAMBERLIN AND FINKElSTEIN JJ

DATE OF ORDER: 19 JUNE 1998

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by Spender J be set aside. 3. The appeal against the decision by the respondent to disallow her objection to the assessment on 27 October 1994 is allowed. 4. The respondent's decision to disallow the appellant's objection is set aside and in lieu thereof it is determined that the objection be allowed. 5. The respondent to pay costs of this appeal and the proceedings before Spender J.