Metlife Insurance Ltd v Commissioner of Taxation [2008] FCA 568

FEDERAL COURT OF AUSTRALIA

Metlife Insurance Ltd v Commissioner of Taxation [2008] FCA 568

TAXATION – income taxation – amended assessments – Commissioner's power to amend 'at any time' – full self-assessment taxpayer – giving effect to CGT Event timing provision – time of contract taken to be time of disposal – amendments to the Income Tax Assessment Act 1936 – whether replaced provision relevant to the interpretation or replacing provision – whether implied limitation on the Commissioner's power to amend Acts Interpretation Act 1901 (Cth) Income Tax Assessment Act 1936 (Cth) ss 6, 18, 160U, 160Z, 166A, 170 and 204, and s 245-10 of Sch 2C Income Tax Assessment Act 1997 (Cth) s 1-3, Sub-Div 20-B, s 26-25, Div 28, ss 42-290, 104-10, 104-15, 104-25, 104-40, 104-45, 104-90, 104-110, 104-205, 104-225, 104-230, 108-15, 108-25, 116-45, 116-50, 118-10, 122-25 and 122-135, Sub-Div 124-B, ss 126-5, 126-45, 126-50, 126-70 and 165-115ZA, and Div 900 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 METLIFE INSURANCE LTD ACN 004 274 882 v COMMISSIONER OF TAXATION NSD1466 OF 2007

EMMETT J

29 APRIL 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1466 OF 2007

BETWEEN: METLIFE INSURANCE LTD ACN 004 274 882

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: EMMETT J

DATE: 29 APRIL 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This proceeding is concerned with the construction of s 170(10AA) of the Income Tax Assessment Act 1936 (Cth) (the 1936 Act). Section 170(10AA), in conjunction with s 170(1), confers power on the respondent, the Commissioner of Taxation (the Commissioner), to amend a notice of assessment in circumstances, relevantly, where disposal of an asset pursuant to a contract for sale is deemed to have occurred when the contract was made rather than when the actual disposal occurred. The question is relevant to a notice of amended assessment issued by the Commissioner to the applicant, Metlife Insurance Ltd (the Taxpayer), in respect of a liability for capital gains tax. The notice of amended assessment was issued after the actual disposal of the relevant asset. 2 By consent, the Court made an order on 14 December 2007, pursuant to Order 29 Rule 2(a) of the Federal Court Rules, that the question of construction be decided separately from, and in advance of, the hearing of all other issues in the proceeding. The Taxpayer and the Commissioner have agreed on the facts that are relevant to the question. Before stating the question and the agreed facts, I shall describe the relevant statutory framework. In the light of the contentions of the Taxpayer, I shall also say something about the legislative history of some of the relevant provisions.