Commissioner of Taxation v Executors of the Estate of Santha Thevy Subrahmanyam [2001] FCA 1836

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Executors of the Estate of Santha Thevy Subrahmanyam [2001] FCA 1836 INCOME TAX – private binding ruling – ruling on whether interest income derived by a taxpayer in certain years of income was assessable income – Commissioner ruled that interest income taxable as taxpayer was a resident of Australia in the years of income – appeal against ruling – whether Tribunal erred in failing to consider whether taxpayer had usual place of abode outside Australia in addition to its finding that taxpayer did not have usual place of abode in Australia – decision of Tribunal set aside – consideration of system of private binding rulings where factual matters in dispute WORDS & PHRASES – "arrangement", "course of conduct", "carried out"

Taxation Administration Act 1953 (Cth) Part IVAA

Income Tax Assessment Act 1936 (Cth) ss 6(1)(a)(ii), 170BB, 170BH

Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 140 CLR 434 referred to

Bellinz v Commissioner of Taxation (1998) 84 FCR 154 referred to

CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397 referred to

COMMISSIONER OF TAXATION v EXECUTORS OF THE ESTATE OF SANTHA THEVY SUBRAHMANYAM S 69 OF 2001

HILL, TAMBERLIN & EMMETT JJ 19 DECEMBER 2001 SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 69 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMMISSIONER OF TAXATION

APPLICANT

AND: EXECUTORS OF THE ESTATE OF SANTHA THEVY SUBRAHMANYAM

RESPONDENT

JUDGE: HILL, TAMBERLIN AND EMMETT JJ

DATE OF ORDER: 19 DECEMBER 2001

WHERE MADE: SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1. The application be allowed. 2. The matter be remitted to a Tribunal differently constituted to reconsider the Commissioner's objection decisions in accordance with law. 3. The respondent pay the costs of the applicant. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.