Finance Facilities Pty Ltd v Commissioner of Taxation (Cth); Talford Investments Pty Ltd v Commissioner of Taxation (Cth); Steed Investments Pty Ltd v Commissioner of Taxation (Cth); Cargill Investments Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 12

High Court of Australia Gibbs J. Barwick C.J. McTiernan, Windeyer and Owen JJ. Finance Facilities Pty Ltd v Commissioner of Taxation (Cth); Talford Investments Pty Ltd v Commissioner of Taxation (Cth); Steed Investments Pty Ltd v Commissioner of Taxation (Cth); Cargill Investments Pty Ltd v Commissioner of Taxation (Cth)

ORDER In matter No. 11 of 1969 — Appeal dismissed with costs. In matters Nos. 36 of 1969, 37 of 1969 and 33 of 1969 — Appeals allowed with costs. Assessments remitted to the Commissioner to be varied in accordance with the reasons for judgment. In matters Nos. 24 of 1970, 25 of 1970 and 23 of 1970 — Appeals allowed with costs. Assessments set aside. Costs of the parties to be taxed on the basis that the matters were heard together. Usual order as to exhibits. Appeal allowed with costs. Order of Gibbs J. set aside and in lieu thereof order that the taxpayer's appeal be allowed with costs and that the assessment be remitted to the respondent to be amended by allowing the appellant the appropriate rebate under s. 46 (3) of the Income Tax Assessment Act.

Cur. adv. vult.

1971, April 27 Gibbs J

. delivered the following written judgment:—

These appeals under s. 187 of the Income Tax Assessment Act 1936-1968 Cth ("the Act") are heard together by consent. In three of the appeals, Nos. 36 of 1969, 37 of 1969 and 33 of 1969, brought respectively by Talford Investments Pty. Ltd. ("Talford"), Steed Investments Pty. Ltd. ("Steed") and Cargill Investments Pty. Ltd. ("Cargill"), from assessments based on income derived by each taxpayer during the year ended 30th June 1968, each taxpayer claims to be entitled to a rebate under s. 46 (2) (b) of the Act obtained by applying the average rate of tax payable by the taxpayer to the full amount of the dividends included in its assessable income, whereas the Commissioner, acting under s. 46 (2) (a), has allowed a rebate based on only half of such dividends. Three further appeals by the same taxpayers, Nos. 24 of 1970, 25 of 1970 and 23 of 1970, are from assessments to additional tax under Div. 7 of Pt III of the Act in respect of the same income year. In all those six appeals each assessment was made on the basis that the taxpayer was a private company within the meaning of the Act in relation to the year of income that ended on 30th June 1968 and the case for each taxpayer is that it was a public company in relation to that year of income. The remaining appeal, No. 11 of 1939, is brought by Finance Facilities Pty. Ltd. ("Finance Facilities") against an assessment based on income derived during the year ended 30th June 1967 by which the Commissioner allowed a rebate under s. 46 (2) (a) based on one-half of the private company dividends included in the taxpayer's assessable income. In that appeal the taxpayer concedes that it was rightly regarded as a private company but claims that it should have been allowed a further rebate under s. 46 (3) of the Act.