Dismin Investments Pty Ltd v Federal Commissioner of Taxation [2001] FCA 690

FEDERAL COURT OF AUSTRALIA

Dismin Investments Pty Ltd v Federal Commissioner of Taxation

[2001] FCA 690 INCOME TAX – appeal – order setting aside decision of Commissioner of Taxation on objections to income tax assessments – whether disposal of shares by foreign controlled company subject to capital gains tax – respondent sought to raise issue on appeal not raised before primary judge – issue as to which step in transaction lead to capital gain – where appellant would have led accounting evidence and evidence as to foreign tax law at trial.

Income Tax Assessment Act 1936 (Cth): Pt X Taxation Administration Act 1953 (Cth): Pt IVAA Income Tax Regulations 1936: reg 152B(1)

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 applied Coulton v Holcombe (1986) 162 CLR 1 applied O'Brien v Komesaroff (1982) 150 CLR 310 distinguished DISMIN INVESTMENTS PTY LTD v FEDERAL COMMISSIONER OF TAXATION V 993 of 2001 HILL, DRUMMOND & GOLDBERG JJ 14 JUNE 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 993 of 2000

BETWEEN: DISMIN INVESTMENTS PTY LTD

(ACN 004 153 691)

Appellant

AND: THE FEDERAL COMMISSIONER OF TAXATION

Respondent

JUDGES: HILL, DRUMMOND & GOLDBERG JJ

DATE OF ORDER: 15 JUNE 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order of the Court on 21 December 2000 be set aside. 3. The decisions on objection dated 21 September 1998 and 25 September 1998 be set aside and, in lieu thereof, it be ordered that the objections be allowed in full. 4. The respondent pay the costs of the appellant before the primary judge. 5. The respondent pay the costs of the appellant of this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA