Nemesis Australia Pty Ltd v Commissioner of Taxation [2005] FCA 1273

FEDERAL COURT OF AUSTRALIA

Nemesis Australia Pty Ltd v Commissioner of Taxation [2005] FCA 1273 TAXATION – appeals against assessment of income tax by the Commissioner of Taxation under s 99A of the Income Tax Assessment Act 1936 (Cth) – appointments of income by the trustee of a discretionary trust to the trustees of three other trusts – appointments disallowed by the Commissioner of Taxation as vesting outside the 80 year perpetuity period specified in s 209 of the Property Law Act 1974 (Qld) – vesting date in principal trust deed falls within the 80 year perpetuity period – the three other trusts have vesting dates outside the 80 year perpetuity period – whether the power of appointment in the principal trust deed is a special or a general power – whether the three other trust deeds should be read back into the principal trust deed – application of the 'wait and see' rule in s 210 of the Property Law Act 1974 (Qld) Income Tax Assessment Act 1936 (Cth) ss 97, 99A Property Law Act 1974 (Qld) ss 208,209,210 Taxation Administration Act 1953 (Cth) ss 14ZZ, 14ZZC, 14ZZO Air Jamaica Limited v Charlton [1999] 1 WLR 1399 referred to Re Gulbenkian's Settlements [1970] AC 508 referred to Re Pilkington's Will Trusts [1964] AC 612 applied Re Thomas Meadows & Co Ltd and Subsidiary Companies (1960) Staff Pension Scheme Rules [1971] 1 Ch 278 distinguished Ramsden v Federal Commissioner of Taxation (2004) ATC 4659 referred to

J C Gray, The Rule against Perpetuities (4th ed, 1942) R P Meagher QC and W M C Gummow, Jacob's Law of Trusts in Australia (5th ed, 1986) J H C Morris and W Barton Leach, The Rule Against Perpetuities (1st ed, 1956) NEMESIS AUSTRALIA PTY LTD (FORMERLY STEVE HART FAMILY HOLDINGS PTY LTD) (ACN 010 225 537) v COMMISSIONER OF TAXATION QUD 89 OF 2003 TAMBERLIN J SYDNEY (HEARD IN BRISBANE) 14 SEPTEMBER 2005