Breakwell v Commissioner of Taxation [2015] FCA 1471

FEDERAL COURT OF AUSTRALIA

Breakwell v Commissioner of Taxation [2015] FCA 1471 Citation: Breakwell v Commissioner of Taxation [2015] FCA 1471

Appeal from: Breakwell v Commissioner of Taxation [2015] AATA 628

Parties: ALLAN BREAKWELL and BREAKWELL INVESTMENTS PTY LTD v COMMISSIONER OF TAXATION

File number: SAD 350 of 2015

Judge: WHITE J

Date of judgment: 22 December 2015

Catchwords: Administrative Law – appeal from the Administrative Appeals Tribunal – taxation liability – capital gains tax – whether applicants entitled to small business CGT concessions – whether loan by a family trust to the trustee should be included in applicants' maximum net asset value test – whether loan was statute-barred by s 35(a) of the Limitation of Actions Act 1936 (SA) (LA Act) – effect of s 48 of the LA Act – whether no limitation period applied because an action to recover loan would be an action to recover trust property to which s 32 of the LA Act applied. Held: loan not statute-barred – objection decision under review affirmed.

Legislation: Administrative Appeal Tribunal Act 1975 (Cth) s 44(1) Income Tax Assessment Act 1997 (Cth) ss 152, 152-10, 152-15, 152-20, Limitation of Actions Act 1936 (SA) ss 32, 35, 36, 38, 42, 48

Cases cited: Australian Iron and Steel Limited v Hoogland (1962) 108 CLR 471 Barker v Duke Group Ltd (in liq) [2005] SASC 81; (2005) 91 SASR 167 Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 Edmunds v Pickering [2000] SASC 267; (2000) 77 SASR 381 In the matter of Auzhair Supplies Pty Ltd (in liq) [2013] NSWSC 1; (2013) 272 FLR 304 Mackay v Peace [2007] QSC 195 Napolitano v Coyle (1977) 15 SASR 559 Ogilvie v Adams [1981] VR 1041 Re Brookers (Aust) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380 Robinson v Craven (1994) 63 SASR 267 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Young v Queensland Trustees Ltd (1956) 99 CLR 560