Fabry v Commissioner of Taxation of the Commonwealth of Australia [2001] FCA 1431

FEDERAL COURT OF AUSTRALIA

Fabry v Commissioner of Taxation of the Commonwealth of Australia [2001] FCA 1431

INCOME TAX – taxpayer claimed to have contracted to provide his personal services to an employer in his capacity as director of his family trustee company – no disclosure of capacity in which taxpayer contracted – whether Administrative Appeals Tribunal erred in law in determining the income derived was income of the taxpayer rather than of the trustee – whether the post contractual conduct of the trustee in rendering accounts and receiving payments for the taxpayer's services constituted evidence of agency

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Income Tax Assessment Act 1936 (Cth) s 25(1)

Leidig v Commissioner of Taxation (1994) 50 FCR 461 - cited Tupicoff v Federal Commissioner of Taxation (1984) 4 FCR 505 – cited Bayly v Commissioner of Taxation (1977) 15 SASR 446 - cited Siu v Eastern Insurance Co Ltd (1994) 2 A.C. 199 - applied Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 – cited Ferguson v Dawson [1976] 2 Lloyd's Rep 669 – cited Darter Pty Ltd v Malloy (1993) 2 Qd R 615 - cited Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1989-1990) 18 NSWLR 540 - cited Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 - applied Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 – cited Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 - cited FABRY v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA V 357 of 2001 JUDGE: MERKEL J DATE: 12 OCTOBER 2001 PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 357 OF 2001

BETWEEN: ALLAN ROBERT HOBILL FABRY

APPLICANT

AND: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA