Kiwi Brands Pty Ltd v The Commissioner of Taxation [1998] FCA 1595

FEDERAL COURT OF AUSTRALIA TAXATION – capital gains – in what tax year gain accrued – whether disposition made under a contract – contract providing for disposition to purchaser for consideration amended to substitute new purchaser and different consideration – whether contract made at time of original contract or time of variation of that contract – meaning of "under a contract" –– execution of contract without authority – unauthorised execution subsequently ratified – doctrine of ratification applied.

Income Tax Assessment Act 1936 (Cth) – ss 160M, 160U(1), 160U(2), 160U(3), 160U(4), 160Z, 160ZC, 160ZD(1), 160ZO, Words: "under a contract"

Elmslie v Federal Commissioner of Taxation (1993) 46 FCR 576 discussed Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd (1957) 98 CLR 93 discussed, distinguished Vickery v Woods (1952) 85 CLR 336 referred to Lake Victoria Ltd v Commissioner of Stamp Duties (1949) 49 SR (NSW) 262 referred to Chan v Cresdon Pty Ltd (1989) 168 CLR 242 referred to Bolton Partners v Lambert (1889) 41 Ch D 295 followed Keighley, Maxsted & Co v Durant [1901] AC 240 followed Davison v Vickery's Motors Ltd (1925) 37 CLR 1 referred to Everett v Commissioner of Taxation (1980) 143 CLR 440 cited Commissioner of Taxation (Cth) v Gulland (1986) 162 CLR 408 cited Commissioner of Taxation (Cth) v Taylor (1929) 42 CLR 80 cited Oates v Commissioner of Taxation (Cth) (1990) 27 FCR 289 cited AAT Case 24 (1994) 94 ATC 239 referred to

KIWI BRANDS PTY LTD v THE COMMISSIONER OF TAXATION

VG 560 of 1997 HILL, FINN AND SUNDBERG JJ MELBOURNE 11 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 560 of 1997

on appeal from a judge of the federal court

BETWEEN: KIWI BRANDS PTY LTD (ACN 006 973 995)

Appellant

AND: THE COMMISSIONER OF TAXATION