Stark v Commissioner of Taxation [2023] FCA 1523

Federal Court of Australia

Stark v Commissioner of Taxation [2023] FCA 1523 Appeal from: Stark and Commissioner of Taxation (Taxation) [2021] AATA 2583 (29 July 2021)

File number: QUD 42 of 2023

Judgment of: DERRINGTON J

Date of judgment: 19 December 2023

Catchwords: TAXATION – income tax – employment termination payment – payment received by taxpayer in settlement of claims for breach of employment agreement and misleading or deceptive conduct – whether payment was exempt capital gain under s 118-37(1)(a)(i) of the Income Tax Assessment Act 1997 (Cth) (ITAA97) – whether payment was an employment termination payment under s 82-130 of the ITAA97 – appeal dismissed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) Taxation Administration Act 1953 (Cth) Termination Payments Tax (Assessment and Collection) Act 1997 (Cth) Trade Practices Act 1974 (Cth) Federal Court Rules 2011 (Cth) Fair Trading Act 1985 (Vic)

Cases cited: Ahamed v Secretary, Department of Human Services [2022] FCA 1207 Ascic v Secretary, Department of Social Services [2016] FCA 1122 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 Berry v Commissioner of Taxation (2015) 149 ALD 270 Bond v Federal Commissioner of Taxation (2015) 101 ATR 85 Bornecrantz v Secretary, Department of Social Services (2017) 169 ALD 453 Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 961 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner of Taxation v Brixius (1987) 16 FCR 359 Commissioner of Taxation v Pitcher (2005) 146 FCR 344 Dibb v Commissioner of Taxation (2004) 136 FCR 388 Dibb v Federal Commissioner of Taxation (2003) 53 ATR 290 Director of Public Prosecutions for the Commonwealth of Australia v JM (2013) 250 CLR 135 Ellis v Secretary, Department of Social Services [2016] FCA 1469 Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247 Federal Commissioner of Taxation v Scully (2000) 201 CLR 148 Federal Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd (2008) 172 FCR 557 Galpin trading as Australian Online Racing Accreditation v Australian Skills Quality Authority [2021] FCA 697 Graham v Robinson [1992] 1 VR 279 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 Harris v Director-General of Society Security (1985) 59 ALJR 194 Ibarcena v Secretary, Department of Family and Community Services [2003] FCA 1354 Jamal v Secretary, Department of Social Services [2017] FCA 916 Johnson v Perez (1988) 166 CLR 351 Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42 Le Grand v Commissioner of Taxation (2002) 124 FCR 53 Luck v Secretary, Department of Human Services (2015) 233 FCR 494 McIntosh v Federal Commissioner of Taxation (1979) 25 ALR 557 Nugawela v Commissioner of Taxation [2022] FCA 1474 Onassys v Comcare [2022] FCA 90 Orfali v Chief Executive Officer, Services Australia [2020] FCA 747 Osland v Secretary to the Department of Justice (2010) 241 CLR 320 P v Child Support Registrar (2013) 62 AAR 17 Rana v Repatriation Commission (2011) 126 ALD 1 Reeves v Nulis Nominees (Australia) Limited (Trustee) [2022] FCA 627 Repatriation Commission v O'Brien (1985) 155 CLR 422 Reseck v Commissioner of Taxation (Cth) (1975) 133 CLR 45 Romanin v Federal Commissioner of Taxation (2008) 73 ATR 760 Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 SDCV v Director-General of Security (2022) 96 ALJR 1002 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Todorovic v Waller (1981) 150 CLR 402 Waterford v Commonwealth (1987) 163 CLR 54, 77 Weeks v Commissioner of Taxation (2012) 128 ALD 24 Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10 Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21