Blank v Commissioner of Taxation [2014] FCA 87

FEDERAL COURT OF AUSTRALIA

Blank v Commissioner of Taxation [2014] FCA 87 Citation: Blank v Commissioner of Taxation [2014] FCA 87

Parties: VAUGHAN RUDD BLANK v COMMISSIONER OF TAXATION

File number: NSD 1913 of 2012

Judge: EDMONDS J

Date of judgment: 21 February 2014

Catchwords: INCOME TAX – employee of global group employed by group companies in various countries including, finally, Australia from 1991 to 2006 – participation in deferred compensation scheme under which amount payable to employee on termination of employment – following termination amount paid in instalments over five years – whether amount or instalments of amount assessable income as dividends/non-share dividends under s 44(1) of the Income Tax Assessment Act 1936 (Cth); as eligible/employment termination payments under ss 27A and 27B of the 1936 Act or s 82-130 of the Income Tax Assessment Act 1997 (Cth); or as ordinary income – if none of these, the cost base of any asset realised on termination for the purposes of Pt 3-3 of the 1997 Act

Legislation: Income Tax Assessment Act 1936 (Cth) ss 27A, 27B, 44(1), 159GZZZP Income Tax Assessment Act 1997 (Cth) s 82-130, Pt 3-3, Div 974 Income Tax Act 1952 (UK) Explanatory Memorandum, New Business Tax System (Debt and Equity) Bill 2001 (Cth)

Cases cited: Brooks v Commissioner of Taxation (2000) 100 FCR 117 cited Brookton Co-operative Society Limited v Federal Commissioner of Taxation (1980–1981) 147 CLR 441 cited Federal Commissioner of Taxation v Myer Emporium Ltd (1986–1987) 163 CLR 199 cited Commissioner of Taxation v McNeil (2007) 229 CLR 656 cited S P Investments Pty Ltd v Commissioner of Taxation (1993) 41 FCR 282 cited Abbott v Philbin [1961] AC 352 considered Tennant v Smith [1892] AC 150 cited Constable v Federal Commissioner of Taxation (1952) 86 CLR 402 cited McArdle v Federal Commissioner of Taxation (1988) 79 ALR 637 cited Le Grand v Commissioner of Taxation (2002) 124 FCR 53 cited Spencer v The Commonwealth (1907) 5 CLR 418 cited Mordecai v Mordecai (1988) 12 NSWLR 58 cited Boland v Yates Property Corporation Pty Ltd (2007) 167 ALR 575 cited Parsons RW, Income Taxation in Australia – Principles of Income, Deductibility and Tax Accounting (Law Book Company, 1985) Australia's future tax system – Report to the Treasurer, December 2009, Pt 1, Overview Parsons RW, Income Taxation – An Institution in Decay? (1986) 12 Monash University Law Review 77 Krever R, Avoidance, Evasion and Reform: Who Dismantled and Who's Rebuilding the Australian Income Tax System?" (1987) 10 UNSW Law Journal 215 Simons HC, Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy (University of Chicago Press, 1938)