Yazbek v Commissioner of Taxation [2013] FCA 39

FEDERAL COURT OF AUSTRALIA

Yazbek v Commissioner of Taxation [2013] FCA 39 Citation: Yazbek v Commissioner of Taxation [2013] FCA 39

Appeal from: Yazbek v Commissioner of Taxation [2012] AATA 477

Parties: LEWIS YAZBEK v COMMISSIONER OF TAXATION

File number: NSD 1471 of 2012

Judge: BENNETT J

Date of judgment: 31 January 2013

Catchwords: TAXATION – judicial review of decision of Administrative Appeals Tribunal – interlocutory decision on preliminary question – whether Court has jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – meaning of the word "beneficiary" in s 170(1) item 1(d) of the Income Tax Assessment Act 1936 (Cth) – whether a person named as a potential object of a discretionary trust is a "beneficiary" in a given tax year if the person received no income from the trust in that year WORDS AND PHRASES – "beneficiary"

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 and Schedule 1 Income Tax Assessment Act 1936 (Cth) ss 6(1), 95A(2), 97, 98, 98A, 99B, 100A and 170 Income Tax Assessment Act 1997 (Cth) ss 104-55(5), 115-228, 152-78 and 207-58

Cases cited: Anderson v Commissioner of Taxes (Vic) (1937) 57 CLR 233 cited Colonial First State Investments Ltd v Federal Commissioner of Taxation (2011) 192 FCR 298 cited Commissioner of Taxations v McMahon (1997) 79 FCR 127 cited Commissioner of Taxation v Ryan (2000) 201 CLR 109 cited Gartside v Inland Revenue Commissioners [1968] AC 553 cited Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492 cited IRG Technical Services Pty Ltd v Federal Commissioner of Taxation (2007) 165 FCR 57 cited Kafataris v Deputy Commissioner of Taxation (2008) 172 FCR 242 followed Leedale v Lewis [1982] 1 WLR 1319 cited Phillips v Inspector-General in Bankruptcy [2011] FCA 612 cited Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Elliott (2009) 174 FCR 387 cited Szajntop v Gerber (1992) 28 ALD 187 cited Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation (2010) 190 FCR 150 cited