Shord v Commissioner of Taxation [2016] FCA 761

FEDERAL COURT OF AUSTRALIA

Shord v Commissioner of Taxation [2016] FCA 761 Appeal from: Shord v Commissioner of Taxation [2015] AATA 355

File number(s): WAD 299 of 2015

Judge(s): GILMOUR J

Date of judgment: 29 June 2016

Catchwords: TAXATION – whether the appellant was engaged in foreign service within the meaning of s 23AG(7) of the Income Tax Assessment Act 1936 (Cth) and thereby exempt from income tax – whether the appellant was entitled to tax offsets for foreign income tax paid pursuant to s 770-10(1) of the Income Tax Assessment Act 1997 (Cth) – whether appellant was an "employee" under s23AG (7) of the Income Tax Assessment Act 1936 (Cth) – whether the burden of proof is upon the appellant to positively disprove the amended income tax assessments by proving the amount of foreign income tax paid

Legislation: Income Tax Assessment Act 1936 (Cth) ss 23AG(1), 23AG(7) Income Tax Assessment Act 1997 (Cth) ss 770-10, 770-10(1) Taxation Administration Act 1953 (Cth) s 14ZZK(b)

Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 680 Blank v Commissioner of Taxation [2015] FCAFC 154 Blank v Commissioner of Taxation (No 2) [2014] FCA 517 Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 Haritos v Commissioner of Taxation [2015] FCAFC 92 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Mulherin v Commissioner of Taxation [2013] FCAFC 115 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366