MBI Properties Pty Ltd v Commissioner of Taxation [2013] FCA 56

FEDERAL COURT OF AUSTRALIA

MBI Properties Pty Ltd v Commissioner of Taxation [2013] FCA 56 Citation: MBI Properties Pty Ltd v Commissioner of Taxation [2013] FCA 56

Parties: MBI PROPERTIES PTY LTD v COMMISSIONER OF TAXATION

File number: NSD 706 of 2012

Judge: GRIFFITHS J

Date of judgment: 6 February 2013

Date of corrigendum 13 March 2013

Catchwords: TAXATION – A New Tax (Goods and Services Tax) Act 1999 (Cth) – Division 135 – GST-free supply of going concern – whether increasing adjustment under s 135-5 - where supplies made through the enterprise to which the going concern relates are neither taxable nor GST-free – where supplies made through the enterprise to which the going concern relates are made by an entity other than the recipient of the going concern – whether supplies made through the enterprise must be made by the recipient of the going concern – intention required by s 135-5(1)(b) – whether recipient of going concern must personally intend that the supplies made through the enterprise are neither taxable nor GST-free

Legislation: A New Tax System (Goods and Service Tax) Act 1999 (Cth) ss 38-325, 135-1, 135-5, 135-10, 156-5

Cases cited: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 Commissioner of Taxation v Qantas Airways Limited [2012] HCA 41 KAP Motors Pty Ltd v Federal Commissioner of Taxation (2008) 168 FCR 319 Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299 Saga Holidays Ltd v Commissioner of Taxation (2006) 156 FCR 256 South Steyne Hotel Pty Ltd v Federal Commissioner of Taxation (2009) 71 ATR 228 South Steyne Hotel Pty Ltd v Federal Commissioner of Taxation (2009) 180 FCR 409 Sunchen Pty Ltd v Federal Commissioner of Taxation (2010) 190 FCR 38