Qantas Airways Limited v Chief Commissioner of State Revenue [2015] NSWSC 826

Supreme Court New South Wales

Medium Neutral Citation: Qantas Airways Limited v Chief Commissioner of State Revenue [2015] NSWSC 826 Hearing dates: 27, 28 and 29 October 2014 Decision date: 30 June 2015 Jurisdiction: Equity Division Before: White J Decision: Refer to para [100] of judgment Catchwords: TAXES AND DUTIES – payroll tax – exemption from payroll tax of employer superannuation contributions paid "in respect of services performed by an employee before 1 July 1996" under the Payroll Tax Act 2007 (NSW) Schedule 6, clause 4(1) and the Pay-Roll Tax Act 1971 (NSW) s 3AA(6A) – apportionment of contributions to a defined benefits scheme by reference to pre and post 1 July 1996 services – taxpayer paid contributions while the fund was in surplus – surplus was not used to reduce size of contributions – contributions paid at a higher "normal cost" level rather than an "adjusted normal cost" level – whether contributions could be apportioned – whether CSR Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1380; (2006) 68 NSWLR 440 was correctly decided that top-up contributions could be apportioned notwithstanding the fund was not in deficit as at 30 June 1996 – whether record-keeping requirements were met by the taxpayer where calculations of payments were not recorded contemporaneously with payments – held, allowing the appeal in part and remitting the matter to the Chief Commissioner: (1) CSR Ltd v Chief Commissioner of State Revenue was correctly decided; (2) the taxpayer was entitled to refunds in respect of top-up contributions and in respect of amounts paid in excess of the adjusted normal cost level; (3) the taxpayer did not prove that any part of the adjusted normal cost level contributions could be apportioned because a simple ratio of pre and post 1 July 1996 services could not be applied to these contributions Legislation Cited: Pay-Roll Tax Act 1971 (NSW) Payroll Tax Act 2007 (NSW) Superannuation Industry (Supervision) Act 1993 (Cth) Taxation Administration Act 1996 (NSW) Income Tax Assessment Act 1936 (Cth) State Revenue Legislation (Further Amendment) Act 1992 (NSW) State Revenue Legislation Further Amendment Act 1996 (NSW) State Revenue Legislation (Miscellaneous Amendments) Act 1996 (NSW) Cases Cited: CSR Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1380; (2006) 68 NSWLR 440 Tasty Chicks Pty Limited v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446 Metricon Qld Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 982; (2013) 92 ATR 169 State Government Insurance Office v Rees (1979) 144 CLR 549 Workers' Compensation Board of Queensland v Technical Products Pty Limited (1988) 165 CLR 642 Category: Principal judgment Parties: Qantas Airways Limited (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: D F C Thomas (Plaintiff) M Kimber SC with I Young and A Gerard (Defendant)