Healey v Commissioner of Taxation [2012] FCA 269

FEDERAL COURT OF AUSTRALIA

Healey v Commissioner of Taxation [2012] FCA 269 Citation: Healey v Commissioner of Taxation [2012] FCA 269

Parties: CARINA HEALEY v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

File number: WAD 188 of 2010

Judge: MCKERRACHER J

Date of judgment: 23 March 2012

Catchwords: INCOME TAX – appeal from income tax assessment and administrative penalty for failure to lodge tax returns – applicant a beneficiary of a discretionary trust – assessment of share transactions concerning trustee of beneficiary trust and whether there was a capital gain – determination of relevant capital gains tax event – assessment of cost base of shares – whether parties dealt at arm's length in share acquisition – insufficient evidence adduced by applicant to support contention that parties did not deal at arm's length – whether fair and reasonable for administrative penalty to be remitted – whether fair and reasonable to remit administrative penalty due to history of late and non-lodgement history and public interest grounds STATUTORY INTERPRETATION – provision defining when capital gains tax event occurs – whether the term 'transfer' includes a conveyance by way of sale or confined to a conveyance by way of gift or settlement – consideration of usage of term throughout capital gains tax provisions and at common law – 'transfer' held to be construed broadly so as to include a conveyance by way of sale

Words & phrases: 'transfer'

Legislation: Income Assessment Act 1936 (Cth) ss 160M(3)(a), 160M(3A) Income Tax Assessment Act 1997 (Cth) 102-25, 104-5, 104-10, 104-55, 104-60, 109-5, 110-25, 112-20 Taxation Administration Act 1953 (Cth) 284-85(1), 284-90(1), 298-20, 14ZZO