Commissioner of Taxation v Eskandari [2004] FCA 8

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Eskandari [2004] FCA 8 TAXATION – income tax – Division 35of the Income Tax Assessment Act 1997 (Cth) – application of s 35-10 precluding the claim of business losses against assessable income from other sources for a given year – Commissioner's exercise of discretion under s 35-55 to allow such deduction – meaning of the phrase 'because of its nature' in s 35-55(1)(b)(i) – whether question of law – whether Commissioner's discretion in s 35-55(1)(b)(i) is exercisable in respect of a business activity not having a lead time between the commencement activity and the production of any assessable income – discussion of approach to construction of notes to section as distinct from operative provisions - whether s 35-55(1)(b) applies in the absence of independent evidence concerning the matters in s 55-35(1)(b)(ii) PRACTICE AND PROCEDURE – remittal of a matter to the Tribunal – whether remittal is manifestly futile – extent to which Court can substitute Tribunal's decision Administrative Appeals Tribunal Act 1975 (Cth) s 44 Income Tax Assessment Act 1997 (Cth) ss 35-5, 35-10, 35-30, 35-35, 35-40, 35-45, 35-55, 950-100 Taxation Administration Act 1953 (Cth) s 14ZZK Federal Court Rules 1979 O 53 r 3 Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 referred to Brooks v Commissioner of Taxation (2000) 100 FCR 117 referred to Chatenay v The Brazilian Submarine Telegraph Company Limited [1891] 1 QB 79 referred to Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 discussed Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to Comcare v Calipari (unreported 8 November 2001) referred to Commissioner of Taxation v Estate of Subrahmanyam (2001) 116 FCR 180 referred to Commissioner of Taxation v McMahon (1997) 79 FCR 127 referred to Harris v Repatriation Commission (2000) 62 ALD 174 discussed Life Insurance Co of Australia Limited v Phillips (1925) 36 CLR 60 discussed Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 referred to Secretary, Department of Community Services and Health v Theologidis (1991) 33 FCR 186 referred to TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited COMMISSIONER OF TAXATION v DANIEL ESKANDARI N 513 OF 2003 STONE J 28 JANUARY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA