Orica Limited v Commissioner of Taxation of the Commonwealth of Australia [2001] FCA 31

FEDERAL COURT OF AUSTRALIA

Orica Limited v Commissioner of Taxation of the Commonwealth of Australia

[2001] FCA 31

INCOME TAX – capital gains – asset – disposal – agreement by third party to discharge future liability of taxpayer – capital gain made upon performance by third party – whether asset disposed of "under a contract" - whether capital gain deemed to have been made at date of the agreement or of performance - whether the Court is bound to follow a per incuriam decision of the High Court – whether issue estoppel can apply to a court decision made in respect of a different year of income

Income Tax Assessment Act 1936 (Cth) Pt IIIA ss 160MC(3)(b), 160U(3), 160U(4), 160U(8), 160U(10) and 160ZJ The Commissioner of Taxation v Orica Limited (1998) 194 CLR 500 - applied Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd 2000 ATC 4378 - applied Kiwi Brands Pty Ltd v Commissioner of Taxation (1998) 90 FCR 67 - discussed Young v Bristol Aeroplane Co Ltd (1944) 1 KB 718 - cited Hoystead v Commissioner of Taxation [1926] AC 155 - considered Mohamed Falil Abdul Caffoor v Commissioner of Income Tax Colombo [1961] AC 584 - applied Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 - cited ORICA LIMITED v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA VG 440, 441, 442, 443 AND 444 OF 1999 AND DULUX HOLDINGS PTY LTD v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA VG 439 OF 1999 JUDGE: MERKEL J PLACE: MELBOURNE DATE: 2 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 440, 441, 442, 443 and 444 of 1999

BETWEEN: ORICA LIMITED

AND: (ACN 004 117 828)

APPLICANT

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA