N & M Martin Holdings Pty Ltd v Commissioner of Taxation [2020] FCA 1186

FEDERAL COURT OF AUSTRALIA

N & M Martin Holdings Pty Ltd v Commissioner of Taxation [2020] FCA 1186 File numbers: NSD 1495 of 2019 NSD 1498 of 2019 NSD 1499 of 2019

Judge: STEWARD J

Date of judgment: 18 August 2020

Catchwords: TAXATION – notices of appeal against appealable objection decisions under s. 14ZZ of the Taxation Administration Act 1953 (Cth.) – where assessments issued to trustee of resident discretionary trust and a non-resident discretionary beneficiary of that trust for the 2013 and 2014 years of income – where trustee made capital gains on disposal of shares in each of those years – where shares disposed of were not 'taxable Australian property' for purposes of Div. 855 of Income Tax Assessment Act 1997 (Cth.) – where trustee resolved to distribute to the beneficiary 99.27% and 100% of capital gains made from sale of those shares in those respective years – where trustee assessed in respect of those gains pursuant to s. 115-220 and to s. 98 of the Income Tax Assessment Act 1936 (Cth.) – where beneficiary also assessed in respect of those gains pursuant to s. 115-215(3) – whether capital gains capable of being disregarded by beneficiary pursuant to s. 855-10 – interaction of Div. 855 with Subdiv. 115-C – consideration of Peter Greensill ADMINISTRATIVE LAW – application for judicial review under s. 39B of the Judiciary Act 1903 (Cth.) and the Administrative Decisions (Judicial Review) Act 1977 (Cth.) – where judicial review sought in respect of decision by the Commissioner not to remit shortfall interest charge under s. 280-160 of Sch. 1 of the Taxation Administration Act 1953 (Cth.) in respect of the beneficiary for the 2014 year of income – whether Commissioner had asked wrong statutory question and had thereby erred at law – whether Commissioner applied test as expressed in s. 8AAG for remission of general interest charge as opposed to test under s. 280-160 for remission of shortfall interest charge