Commissioner of Taxation v Bosanac

The Commissioner of Taxation sought to appeal a decision made by McKerracher J, which involved the presumption of advancement in relation to the purchase of a property by a husband and wife. The property in question was registered solely in the wife's name, but the Commissioner argued that the husband held a 50% beneficial interest. The Full Court of the Federal Court of Australia was tasked with determining whether the presumption of advancement was qualified by the statements made in Trustees of Property of Cummins (a bankrupt) v Cummins and whether the presumption was rebutted by the circumstances surrounding the purchase and ownership of the property.

The court was required to consider whether the presumption of advancement, which generally assumes that property purchased by one spouse is a gift to the other, was applicable in this case. The court also had to determine if the presumption was qualified by the statements in Cummins, and if the circumstances of the property purchase and subsequent conduct of the parties rebutted the presumption. Specifically, the court examined whether the property was intended as a matrimonial home, the contributions made by both spouses towards the purchase, and the husband's significant liability under the mortgage over the property.

The court found that the presumption of advancement was rebutted by the facts of the case. The inference that the husband acquired a 50% beneficial interest in the property was supported by the evidence of equal contributions to the purchase through joint loan accounts, the husband's assumption of significant liability under the mortgage, and the property being intended as a matrimonial home. The court held that the presumption of advancement was not qualified by the statements in Cummins and was effectively rebutted by the circumstances of the case. Consequently, the appeal was allowed, and the orders made by McKerracher J were set aside. The wife was declared to hold 50% of her interest in the property on trust for the husband. The court also directed the parties to file and serve submissions on the appropriate order for costs within specified timeframes.