Kmart Australia Ltd v Commissioner of Taxation of the Commonwealth of Australia [2001] FCA 1540

FEDERAL COURT OF AUSTRALIA

Kmart Australia Ltd v Commissioner of Taxation of the Commonwealth of Australia [2001] FCA 1540

SALES TAX – computer programs – where computer program exempt from wholesale sales tax – where non-audio information (NAI) on a compact disc (CD) is a computer program – for the purpose of apportionment of sales tax, what part of the taxable value of the taxable dealing constituted by the wholesale sale of a CD is attributable to the NAI embedded in it Sales Tax Assessment Act 1992 (Cth) s 24, 95(1), 16, 43, 5, 14, 45, 13, Schedule 1 Sales Tax (Exemptions and Classifications) Act 1992 (Cth) Copyright Act (1968) (Cth) Sales Tax Assessment Act (No 1) 1930 (Cth) s 18C

Kmart v Commissioner of Taxation (1998) 88 FCR 336 referred to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited Chaudhri v Federal Commissioner of Taxation [2001] ATC 4212; [2001] FCA 554 cited Roadshow Distributors Pty Ltd v Commissioner of State Revenue [1998] 1 VR 523 referred to Federal Commissioner of Taxation v Prestige Motors Pty Ltd (1998) 153 ALR 19 referred to Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 referred to Sheldon v Metro-Goldwyn Picture Corp (1940) 106 F 2d 45 referred to KMART AUSTRALIA LTD v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA N 1168 OF 1999 HELY J 2 NOVEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1168 OF 1999

BETWEEN: KMART AUSTRALIA LTD

APPLICANT

AND: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 2 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The parties bring in short minutes of order to give effect to these reasons. 2. Further consideration of Issue 10 reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.