Sandini Pty Ltd v Commissioner of Taxation [2017] FCA 287

FEDERAL COURT OF AUSTRALIA

Sandini Pty Ltd v Commissioner of Taxation [2017] FCA 287 File number: WAD 754 of 2015

Judge: MCKERRACHER J

Date of judgment: 22 March 2017

Catchwords: INCOME TAX – capital gains tax – roll over relief – whether a family court order transferring shares to a family trust may in some circumstances attract roll over relief pursuant to subdiv 126-A of the Income Tax Assessment Act 1997 (Cth) ('ITAA') – whether s 126-15(1) of the ITAA extends to transfers to companies or trusts associated with a spouse or former spouse – whether transferee must be an individual for the purposes of ss 126-5 and 126-15 of the ITAA - whether change in beneficial ownership constitutes a change in ownership for the purposes of s 104-10(2) of the ITAA – disposal of ownership by operation of law - whether the making of a family court order constituted a CGT event A1 – whether steps taken in furtherance of a family court order constituted the appropriation of shares pursuant to that order - whether there was a change in ownership by reason of constructive receipt of shares - whether there was a change in ownership by reason of s 103-10 of the ITAA - whether a spouse or former spouse's involvement in the change of ownership is sufficient to enliven ss 126-5 and 126-15 of the ITAA ADMINISTRATIVE LAW – jurisdiction – whether the court has jurisdiction to grant declaratory relief pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth) – whether there is a genuine controversy between the parties that is susceptible to judicial determination – whether declaratory relief is available when a tax assessment is yet to be issued – whether Court should exercise its discretion to grant declaratory relief TRUSTS AND TRUSTEES - shares held on trust – certainty of trust property - whether possible to have trust of a certain number of shares out of a larger parcel of shares