Transurban City Link Limited v Commissioner of Taxation [2004] FCA 40

FEDERAL COURT OF AUSTRALIA

Transurban City Link Limited v Commissioner of Taxation [2004] FCA 40

TAXATION – grant by the State of Victoria to the taxpayer of a concession to establish and operate the Melbourne City Link tollway - taxpayer is under a present semi-annual liability to pay concession fees in the future – whether the concession fees are outgoings incurred in the year in which the liability arises – whether the fees are referable to the year in which the liability arises or the year in which the liability is discharged by payment – whether the fees were paid for monopoly or other anti-competitive rights and are therefore of a capital nature – whether the fees were akin to a sharing of profits or a dividend payable to a joint venturer – whether the fees were expended on the profit earning structure and are therefore of a capital nature

Income Tax Assessment Act 1936 (Cth) s 51(1) Income Tax Assessment Act 1997 (Cth) s 8-1

New Zealand Flax Investments Limited v The Federal Commissioner of Taxation (1939) 61 CLR 179 - applied Ogilvy and Mather Pty Ltd v Federal Commissioner of Taxation (1990) 95 ALR 663 – considered Merrill Lynch International (Australia) Ltd v Commissioner of Taxation (2001) 113 FCR 79 - considered Coles Myer Finance Limited v Commissioner of Taxation of the Commonwealth of Australia (1993) 176 CLR 640 - applied Alliance Holdings Ltd v Federal Commissioner of Taxation (1981) 37 ALR 430 - considered Federal Commissioner of Taxation v Australian Guarantee Corporation Ltd (1984) 2 FCR 483 – considered Commissioner of Taxation v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1999) 87 FCR 536 – cited The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation (1953) 89 CLR 428 - applied United Energy Ltd v Commissioner of Taxation (1997) 78 FCR 169 - applied Jupiters Limited v Commissioner of Taxation (2002) 118 FCR 163 - cited Broken Hill Theatres Proprietary Limited v Federal Commissioner of Taxation (1952) 85 CLR 423 – cited Sun Newspapers Limited v The Federal Commissioner of Taxation (1939) 61 CLR 337 - applied B.P. Australia Limited v Commissioner of Taxation of the Commonwealth of Australia (1965) 112 CLR 386 – cited The Commissioner of Taxation (Western Australia) v Boulder Perseverance Limited (1937) 58 CLR 223 - considered The Federal Commissioner of Taxation v The Midland Railway Company of Western Australia Limited (1952) 85 CLR 306 – applied United Dominions Corporation Limited v Brian Proprietary Limited (1985) 157 CLR 1 - considered Rotherwood Pty Ltd v Commissioner of Taxation (1996) 64 FCR 313 - applied QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270 – cited Jones v Dunkel (1959) 101 CLR 298 – applied Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243 – cited Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 - cited TRANSURBAN CITY LINK LIMITED (ACN 070 810 678) v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA V 984 OF 2000 MERKEL J 2 FEBRUARY 2004 MELBOURNE