Amway of Australia Pty Ltd v Commonwealth of Australia & Anor Amway of Australia Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1998] FCA 1311

FEDERAL COURT OF AUSTRALIA

SALES TAX - application for refund - indirect marketer selling goods by retail through distribution agents deemed to be "wholesale merchant" under Sales Tax Laws Amendment Act 1985 (Cth) - variation of sales tax liability - variation of sales tax rates pursuant to Sales Tax Ruling ST2140, Sales Tax Ruling ST2424 and private Ruling - unjust enrichment - whether sales tax legislation constitutes exhaustive code such that general law actions in respect of the same subject matter are not available. SALES TAX - application for refund - indirect marketer selling goods by retail through distribution agents deemed to be "wholesale merchant" under Sales Tax Laws Amendment Act 1985 (Cth) - variation of sales tax liability - variation of sales tax rates pursuant to Sales Tax Ruling ST2140, Sales Tax Ruling ST2424 and private Ruling - whether refund payable by Commissioner of Taxation ("Commissioner"), for example, pursuant to ss 11(1) and 11(1A) of Sales Tax Assessment Act (No 6) 1930 (Cth) - Whether Commissioner should have been satisfied there had been an overpayment of sales tax - whether applicant discharged burden of showing that the taxable sale value, being the "amount which would be the fair market value of [the relevant] goods if sold by [it] by wholesale" was less than the sale value as taxed - whether statutory formula requires that applicant be treated as putative wholesaler selling goods to its actual retail competitors in order to establish taxable sale value - Whether Commissioner should have been satisfied that sales tax had not been "passed on" - whether "absorption" of sales tax in reduced profit margins precludes passing on - whether sales tax increase taken into account by applicant as a relevant cost - whether price reduction for sales tax exempt customers properly taken into account by Commissioner - whether the "equity of the statute" requires that passing on can occur only where refund would be a "windfall gain" to the taxpayer. ADMINISTRATIVE LAW - judicial review - appealable objection decision under s 14ZZ of Taxation Administration Act 1953 (Cth) - whether Commissioner failed to understand, or alternatively, to take into account, applicant's contentions. WORDS AND PHRASES - "fair market value of those goods if sold by him by wholesale" - "passing on". Sales Tax Assessment Act (No 1) 1930 (Cth) - ss 3(1), 3(4A), 18(1)(b) Sales Tax Assessment Act (Nos 2, 3, 6, 7) 1930 (Cth) - ss 3, 4(1), 5, 11(1), 11(1A), 12 Sales Tax Laws Amendment Act 1985 (Cth) Taxation Administration Act 1953 (Cth) - ss 14ZZ, 14ZZO(b)(iii), 14ZZP Judiciary Act 1903 (Cth) - s 77MA High Court Rules - O 44 r 23 Federal Court Rules - O 52A r 13(2), O 52B r 3, O 52B r 4(3) Explanatory Memorandum to the Sales Tax Laws Amendment Bill 1985 (Cth) Sales Tax Ruling ST2140 Sales Tax Ruling ST2424 Chippendale Printing Co Pty Ltd v Commissioner of Taxation & Anor (1996) 62 FCR 347 - followed Deputy Federal Commissioner of Taxation (SA) v Ellis and Clarke Ltd (1934) 52 CLR 85 - considered Otto Australia Pty Ltd v Federal Commissioner of Taxation (1989-1990) 25 FCR 257 - considered and followed Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 - followed Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 - considered Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535 - considered Chamberlain v Deputy Commissioner of Taxation (ACT) (1987) 13 FCR 94 - cited Bellinz Pty Ltd & Ors v Commissioner of Taxation of the Commonwealth of Australia 98 ATC 4399 - cited Bellinz Pty Ltd & Ors v Commissioner of Taxation of the Commonwealth of Australia 98 ATC 4634 - cited Estee Lauder Pty Ltd v Federal Commissioner of Taxation (1988) 80 ALR 314 - referred to Commonwealth Quarries (Footscray) Pty Ltd v Federal Commissioner of Taxation (1938) 59 CLR 111 - applied Otto Australia Pty Ltd v Commissioner of Taxation (1991) 28 FCR 477 - considered and followed Case 45/95 95 ATC 395 - considered Case 55/96 96 ATC 531 - considered Case Y46 91 ATC 431 - considered Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51 - considered Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 - followed Nelson & Anor v Nelson & Ors (1995) 184 CLR 538 - referred to Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] (1993) 178 CLR 561 referred to AMWAY OF AUSTRALIA PTY LIMITED v COMMONWEALTH OF AUSTRALIA and COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA NG 436 of 1995 AMWAY OF AUSTRALIA PTY LIMITED v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA NG 436 of 1996