Commissioner of Taxation v Payne [2001] HCA 3

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY AND HAYNE JJ

COMMISSIONER OF TAXATION

OF THE COMMONWEALTH OF AUSTRALIA APPELLANT

AND

ANDREW PAYNE RESPONDENT

Commissioner of Taxation v Payne

[2001] HCA 3

8 February 2001

S252/1999

ORDER

1. Appeal allowed.

2. Set aside orders 1 and 2 of the orders of the Full Court of the Federal Court of Australia made on 30 March 1999 and in lieu thereof order:

(a) Appeal allowed.

(b) Set aside orders 1 and 2 of the orders made by Foster J on 2 July 1998 and in lieu thereof order:

(i) that the matter be remitted to the Administrative Appeals Tribunal for consideration of the questions:

first, whether the taxpayer should have leave in respect of any of the years of income ended 30 June 1991, 1992, 1993 or 1994 to rely on an additional ground of objection to the effect that the Commissioner was bound in respect of Taxation Ruling TR 95/19 to assess the tax payable by the taxpayer in accordance with that ruling; and

second, if leave is granted, whether and to what extent the Commissioner was so bound.

(ii) otherwise, appeal dismissed.

On appeal from the Federal Court of Australia

Representation:

D H Bloom QC with S W Gibb SC for the appellant (instructed by Australian Government Solicitor)

D F Jackson QC with D B McGovern and A J O'Brien for the respondent (instructed by Locke Harris McHugh)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commissioner of Taxation v Payne

Income tax – Allowable deductions – Travel expenses incurred in travelling between unrelated places of work and business – Whether expenses incurred "in gaining or producing the assessable income".

Words and phrases – "in gaining or producing the assessable income".

Income Tax Assessment Act 1936 (Cth), s 51(1).