Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation

The case of Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation involved a dispute between Aussiegolfa and the Commissioner of Taxation over whether Aussiegolfa's investment in the DomaCom Fund breached the sole purpose test and the in-house asset rules under the Superannuation Industry (Supervision) Act 1993 (Cth). The Australian Tax Office had issued a notice of objection asserting that Aussiegolfa's investment in the Burwood property, which was owned by the DomaCom Fund, was in breach of the relevant legislative provisions. Aussiegolfa applied for a declaration that it was not in breach of the provisions. The Federal Court was tasked with determining whether Aussiegolfa's investment breached the statutory provisions and whether Aussiegolfa was entitled to the declaratory relief sought.

The court examined the terms of the DomaCom Fund Constitution, particularly clause 2.2, which declared that the assets were held on trust for the members of the DomaCom Fund. The court also considered clause 4.12, which provided that the terms of the Constitution were to give rise only to "a single trust" and that no unit or class of units gave "rise to a distinct trust". The court found that, despite these provisions, the Constitution provided for the division of the "beneficial interest" in the fund to reflect the objective of ensuring that the holders of specific classes of units would enjoy or bear exclusively (albeit subject to any general right of the trustee of indemnity or reimbursement) all of the benefits and burdens referrable to specific assets acquired by the responsible entity as trustee on behalf of an investor. The court held that the relevant asset was Aussiegolfa's investment in the DomaCom Fund and that the Sub-Fund was not a separate trust. Therefore, Aussiegolfa's investment in the Burwood property did not breach the in-house asset rules.

The court dismissed Aussiegolfa's application for declaratory relief and ordered that the application be dismissed with costs.