Pontifex Jewellers (Wholesale) Pty Ltd v Commissioner of Taxation [1999] FCA 1822

FEDERAL COURT OF AUSTRALIA

Pontifex Jewellers (Wholesale) Pty Ltd v Commissioner of Taxation [1999] FCA 1822 SALES TAX – meaning of "non-arm's length transaction" in s 94 – meaning of "it would have been the case (or could reasonably be expected to have been the case)" in s 94 – effect of the section – effect of related parties selecting a wholesale price of goods discounted as unsold, after being delivered on consignment, by consulting a valuer who decided figures according to the category of goods and the length of time an item had failed to sell – whether proceeding should be dismissed summarily. PRACTICE & PROCEDURE – summary dismissal – whether, on the affidavit evidence filed, the applicant must fail. Sales Tax Assessment Act 1992, s 94 Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 75 ALR 287 referred to Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988) 85 ALR 287 referred to Granby Pty Ltd v F C of T (1995) 95 ATC 4240 followed The Trustee for the Estate of the late A W Furse No. 5 Will Trust v F C of T (1990) 91 ATC 4007 followed Barnsdall v Federal Commissioner of Taxation (1988)88 ATC 4565 followed Copperart Pty Ltd v F C of T (1993) 93 ATC 4779 referred to Collis v Commissioner of Taxation of the Commonwealth of Australia (Jenkinson J, unreported, 30 May 1996) referred to Castle Bacon Pty Ltd v Comptroller-General of Customs (1995) 38 ALD 230 referred to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 applied Alec Finlayson Pty Ltd v Armidale City Council (1997) 98 LGERA119 referred to Webster v Lampard (1993) 177 CLR 598 applied Lonrho Plc v Fayed [1992] 1 AC 448 applied

PONTIFEX JEWELLERS (WHOLESALE) PTY LIMITED v COMMISSIONER OF TAXATION NG 516 of 1998 NG 517 of 1998 BURCHETT J 23 DECEMBER 1999 SYDNEY