Re: COMMISSIONER OF TAXATION
And: PATRICIA FRANCES SALENGER
No. G528 of 1987
Income Tax
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
French(1) J.
CATCHWORDS
Income Tax - income Tax Assessment Act 1936 s.26AAA(2) - company takeover - compulsory acquisition of dissenting shareholder's shares purchased less than 12 months previously - whether "sold" by taxpayer - whether deemed sale under s.26AAA(1)(f) - duty of Administrative Appeals Tribunal to follow decisions of state and federal courts.
Income Tax Assessment Act 1936 s.26AAA
Companies (Acquisition of Shares) Code
Companies Act (1961) (NSW)
Income Tax Act 1945
Lands Clauses Consolidation Act 1845 (Eng)
Benjamin on Sale 8th Ed. Fleming: The Law of Torts 6th Ed.
Clerk and Lindsell on Torts 15th Ed. Pearce: Statutory Interpretation in Australia 2nd Ed.
Brettingham-Moore v Federal Commmissioner of Taxation (1981) 53 FLR 480; 38 ALR 340
Coburg Investment Co. Pty Ltd v Federal Commissioner of Taxation (1960) 104 CLR 650
Adams v Broughton (1737) Andr.18; 2 Str.1078; 93 ER 1043; 95 ER 278
Brinsmead v Harrison (1871) LR 6 CP 584, 588;
Purcell v Thomas (No. 2) (1904) StRQD 189
Ridge Nominees Ltd v Inland Revenue Commissioners (1962) 1 Ch.376
Sun Alliance Insurance Ltd v Inland Revenue Commissioners (1972) 1 Ch.133
Finance Corporation of Australia Ltd v Commissioner of Stamp
Duties (1981) QdR493
Kirkness v John Hudson & Co. Ltd (1955) AC 696
Nalukuya v Director of Lands. Native Land Trust Board of Fiji
Intervener. (1957) AC 325
Hobart Bridge Co. Ltd v Federal Commissioner of Taxation (1951) 82 CLR 372
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
Henty House Pty Ltd (In Voluntary Liquidation) v Federal
Commissioner of Taxation (1953) 88 CLR 141
Public Trustee v Commissioner of Inland Revenue (1961) NZLR 1034
HEARING
PERTH
#DATE 3:6:1988
Counsel for the Applicant: S.W. Gibb with A.J.P. Reynolds
Solicitors for the Applicant: Australian Government Solicitor
Counsel for the Respondent: A. Slater
Solicitors for the Respondent: Humphreys & Corish
ORDER
The appeal is allowed.
The decision of the Tribunal is set aside.
The applicant's assessment of the respondent's taxable income for the year of income ended 30 June 1982 is confirmed.
Liberty to apply as to the form of order within 7 days.
The respondent to pay the applicant's costs of this appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
In her income tax return for the year ended 30 June 1982, Patricia Frances Salenger declared a taxable income totalling $52,445. The Commissioner of Taxation said that this was not enough. She should have brought to account under s.26AAA of the
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- AGLC
- Commissioner of Taxation v. Salenger, P.F. [1988] FCA 272
- Case
- [1988] FCA 272
- Decision Date
CaseChat Overview and Summary
The legal issues at hand required the court to interpret the statutory language of the Income Tax Assessment Act 1936 and to determine the applicability of the deemed sale provision in the context of a corporate takeover. Additionally, the court had to examine the obligations of the Administrative Appeals Tribunal in relation to the hierarchy of legal authority, specifically whether the Tribunal was bound to follow prior decisions from state and federal courts.
In its reasoning, the court found that the acquisition of the dissenting shareholders' shares by Mr. Hand constituted a "sale" under section 26AAA(1)(f) of the Act, as the shares were acquired within twelve months of his initial purchase. The court also held that the Administrative Appeals Tribunal was indeed required to follow the precedents set by both state and federal courts. As a result, the appeal was allowed, the decision of the Tribunal was set aside, and the applicant's assessment of the respondent's taxable income for the year of income ended 30 June 1982 was confirmed. Furthermore, the court ordered that Mr. Hand pay the applicant's costs associated with the appeal.
Orders
Orders of the court
The appeal is allowed.
The decision of the Tribunal is set aside.
The applicant's assessment of the respondent's taxable income for the year of income ended 30 June 1982 is confirmed.
Liberty to apply as to the form of order within 7 days.
The respondent to pay the applicant's costs of this appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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