Commissioner of Taxation v Linter Textiles Australia Ltd (In Liquidation) [2005] HCA 20

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

COMMISSIONER OF TAXATION APPELLANT

AND

LINTER TEXTILES AUSTRALIA LTD (IN LIQUIDATION) RESPONDENT

Commissioner of Taxation v Linter Textiles Australia Ltd (In Liquidation)

[2005] HCA 20

26 April 2005

S606/2003

ORDER

1. Leave to amend notice of appeal granted and amended notice of appeal treated as filed and served.

1. Appeal allowed.

3. Set aside the orders of the Full Court of the Federal Court of Australia made on 14 April 2003 and in their place order:

1. appeal allowed with costs; 2. set aside the orders of Hely J made on 6 September 2002 and in their place order: 3. objection decision dated 9 February 2001 affirmed; 4. applicant to pay the costs of the proceedings before Hely J.

4. Appellant to pay the respondent's costs of and incidental to the proceedings in this Court.

On appeal from the Federal Court of Australia

Representation:

M R Aldridge SC with S J McMillan and N Perram for the appellant (instructed by Australian Government Solicitor) at the hearing on 3 August 2004

A Robertson SC with M R Aldridge SC and S J McMillan for the appellant (instructed by Australian Government Solicitor) at the hearing on 9 December 2004

D H Bloom QC with J Davies SC and S H Steward for the respondent (instructed by Phillips Fox)

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 Linter Textiles Australia Ltd (In Liquidation)

Income tax – Allowable deductions – Loss carry forward provisions – Losses incurred by taxpayer company in preceding years – Requirement of continuity during year of income of beneficial ownership in shares in the taxpayer company that carry between them various rights – Winding-up order made in respect of parent of taxpayer company and subsequently in respect of taxpayer company – Liquidators appointed in each case – Whether shares in the taxpayer company still carried between them the rights required to be attached to those shares.