Kelly v Commissioner of Taxation (No 2) [2012] FCA 689

FEDERAL COURT OF AUSTRALIA

Kelly v Commissioner of Taxation (No 2) [2012] FCA 689 Citation: Kelly v Commissioner of Taxation (No 2) [2012] FCA 689

Parties: SEAN KELLY v COMMISSIONER OF TAXATION

File number: QUD 571 of 2010

Judges: BESANKO J

Date of judgment: 29 June 2012

Catchwords: PRACTICE AND PROCEDURE – application by applicant for court to review its reasons and conclusions – where final orders not yet made – application by applicant for court to revoke leave for respondent to claim superannuation deduction not allowable deduction – costs – rule 17.01(3) of Federal Court Rules 2011. Held: the applicant's applications must be refused. TAXATION – superannuation deduction – where applicant a director of trustee company of applicant's family trust – where applicant received superannuation benefit from trustee company – whether payment allowable deduction for purposes of s 290-60 of Income Tax Assessment Act 1997 (Cth) – whether applicant an employee for purposes of s 12(2) Superannuation Guarantee (Administration) Act 1992 (Cth) – whether payment evidence of "entitlement to payment" – whether applicant entitled to quantum meruit for services to trustee company – where constitution of trustee company provided for remuneration of directors by way of resolution of company in general meeting. Held: The superannuation deduction was not an allowable deduction for the purposes of s 290-60 of the Income Tax Assessment Act 1997 (Cth).

Legislation: Corporations Act 2001 (Cth) ss 140, 202A Income Tax Assessment Act 1997 (Cth) ss 2, 65, 290-60, Superannuation Guarantee (Administration) Act 1992 (Cth) s 12