K Mart Australia Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1998] FCA 1409

FEDERAL COURT OF AUSTRALIA TAXATION – application for declaratory relief to the effect that the whole of the digital information embodied in a compact disc digital audio (music CD) is a "tax-advantaged computer program" within the meaning of s 14(1) of the Sales Tax Assessment Act 1992 (Cth) – whether whole (or part) of the digital information embodied on the music CDs constitutes an expression "of a set of instructions … intended … directly to cause a CD player to perform a particular function" amounting to a "computer program" as defined in the Copyright Act 1968 (Cth) Sales Tax Assessment Act 1992 (Cth), ss 14(1), 45 Copyright Act 1968 (Cth), s 10(1) Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1947) 75 CLR 134, cited Gibb v Federal Commissioner of Taxation (1966)118 CLR 628, cited Dyason & Ors v Autodesk Inc & Anor (1990) 96 ALR 57, cited Autodesk Inc & Anor v Dyason (1992), 173 CLR 337, considered Autodesk Inc & Anor v Dyason [No 2] (1993) 176 CLR 300, considered Pepsi Seven-Up Bottlers v Commission of Taxation (1995) 62 FLR 289, cited

K MART AUSTRALIA LIMITED v

THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

NG 561 of 1997

O'CONNOR J

SYDNEY

6 NOvember 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 561 of 1998

BETWEEN: K MART AUSTRALIA LIMITED

Applicant

AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: O'CONNOR J

DATE OF ORDER: 6 november 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: NOTE: SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 561 of 1998

BETWEEN: K MART AUSTRALIA LIMITED

Applicant