Commissioner of Taxation v Condell [2006] FCA 1047

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Condell [2006] FCA 1047 TAXATION - income tax - assessable income - dividends paid by a company out of profits derived - dealings between company and subsidiary - company readjustment - distribution of shares in subsidiary - from where profits derived EVIDENCE - finding based on company accounts Income Tax Assessment Act 1936 (Cth) s 44(1)(a) Commissioner of Taxation of the Commonwealth of Australia v Sun Alliance Investments Pty Ltd [2005] HCA 70 Considered Evans v Deputy Federal Commissioner of Taxation for South Australia (1936) 55 CLR 80 Considered Federal Commissioner of Taxation v Blakely (1951) 82 CLR 388 Questioned Federal Commissioner of Taxation v Uther (1965) 112 CLR 630 Cited In Re Spanish Prospecting Co Ltd (1911) 1 CJ 92 Cited McFarlane v Commissioner of Taxation (1986) 13 FCR 356 Cited Federal Commissioner of Taxation of the Commonwealth v Slater Holdings Ltd (1984) 156 CLR 447 Cited Webb v Federal Commissioner of Taxation (1922) 30 CLR 450 Considered FB Palmer, Palmer's Company Law, 22nd edn, Stevens, London, 1976 at p.794 COMMISSIONER OF TAXATION V GREGORY CONDELL QUD 182 OF 2005 KIEFEL J 15 AUGUST 2006 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLANDDISTRICT REGISTRY QUD 182 OF 2005

BETWEEN: COMMISSIONER OF TAXATION

APPLICANT

AND: GREGORY CONDELL

RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 15 AUGUST 2006

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal given on 8 June 2005 be set aside. 3. In lieu of that decision it be determined that the applicant's objection decision dated 16 June 2004 be affirmed. 4. The applicant pay the respondent's costs on the bases provided for in the Test Case Funding Deed between the applicant and the respondent dated 23 November 2005 (the Test Case Funding Deed). 5. In the event of a dispute between the parties as to amount of the costs payable under the Test Case Funding Deed, then the respondent shall, pursuant to the Federal Court Rules be entitled to costs ascertained in accordance with the Test Case Funding Deed, and such costs can be taxed accordingly.