BRK (Bris) Pty Ltd v Commissioner of Taxation [2001] FCA 164

FEDERAL COURT OF AUSTRALIA

BRK (Bris) Pty Ltd v Commissioner of Taxation [2001] FCA 164 INCOME TAX - Appeal against disallowance of objections - consideration of applicant trustee's resolutions and appointments of income - whether there was any beneficiary presently entitled to income of the Trust - consideration and interpretation of Trust Deed - whether applicant trustee should be assessed to tax under s 99A Income Tax Assessment Act 1936 (Cth). PENALTY TAX - Consideration of whether tax shortfall caused by recklessness of taxpayer or tax agent - consideration of circumstances that led to tax shortfall. Income Tax Assessment Act 1936 (Cth) ss 97, 99A, 222A and 226H

In re Gulbenkian's Settlements [1970] AC 508 App In re Hays Settlement Trusts [1982] 1 WLR 202 App Re Cavill Hotels Pty Ltd (1998) 1 Qd R 396 App Turner v Turner [1984] Ch 100 App Lutheran Church of Australia v Farmers' Co-Operative Executors and Trustees Ltd (1970) 121 CLR 628 App McPhail v Doulton [1971] AC 424 App In re Locker's Settlement [1977] 1 WLR 1323 App Breadner v Granville-Grossman [2000] 4 All ER 705 App Pearson v Inland Revenue Commissioners [1981] AC 753 App In re Allen-Meyricks Will Trusts [1966] 1 WLR 499 App BRK (BRIS) PTY LTD v COMMISSIONER OF TAXATION Q35 OF 1999 COOPER J BRISBANE 2 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q35 OF 1999

BETWEEN: BRK (BRIS) PTY LTD

ACN 010 140 299

APPLICANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: COOPER J

DATE OF ORDER: 2 MARCH 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1(a) The objection decision in respect of the objection to the assessment of income for the year ended 30 June 1994 be set aside in part. (b) The objection be allowed in part; (c) The applicant be assessed to income tax and penalty tax in the year ended 30 June 1994 on an assessable income of $304,021 in lieu of an assessable income of $306,758; (d) The application otherwise is dismissed. 2. The applicant pay the respondent's costs of and incidental to the application including reserved costs to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.