Commissioner of Taxation v Noza Holdings Pty Ltd (No 2)

[2012] FCAFC 54

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Noza Holdings Pty Ltd (No 2) [2012] FCAFC 54

Citation:

Commissioner of Taxation v Noza Holdings Pty Ltd (No 2) [2012] FCAFC 54

Appeal from:

Noza Holdings Pty Ltd v Commissioner of Taxation [2011] FCA 46

Parties:

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v NOZA HOLDINGS PTY LTD (ACN 098 410 881)

File numbers:

VID 195 of 2011
VID 196 of 2011
VID 197 of 2011
VID 198 of 2011
VID 200 of 2011

Parties:

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v ITW AFC PTY LIMITED (ACN 091 191 865)

File number:

VID 201 of 2011

Judges:

EDMONDS, JESSUP AND ROBERTSON JJ

Date of judgment:

20 April 2012

Date of final submissions:

5 April 2012

Catchwords:

PRACTICE AND PROCEDURE – Costs – Interlinked appeals concerning common issue of whether dividend declared is an allowable deduction under s 25-90 of the Income Tax Assessment Act 1997 (Cth) in year of declaration – Whether appellant’s success on appeals justifies a variation to costs orders below. 

Held: No.  Both parties successful on appeals in part; appellant’s successes not sufficient to justify variation to costs orders below; and each party bear its own costs of the appeals.  

Cases cited:

Commissioner of Taxation v Noza Holdings Pty Ltd [2012] FCAFC 43

Date of hearing:

Heard on the papers

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Appellant:

Mr SJ Sharpley with Mr AM Dinelli

Solicitor for the Appellant:

Gadens

Counsel for the Respondents:

Mr JW de Wijn QC with Mr SH Steward SC and Mr DJ McInerney

Solicitor for the Respondents:

Pricewaterhouse Coopers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 195 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	NOZA HOLDINGS PTY LTD (ACN 098 410 881) Respondent

JUDGES:	EDMONDS, JESSUP AND ROBERTSON JJ
DATE OF ORDER:	20 APRIL 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Each party bear their own costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 196 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	NOZA HOLDINGS PTY LTD (ACN 098 410 881) Respondent

JUDGES:	EDMONDS, JESSUP AND ROBERTSON JJ
DATE OF ORDER:	20 APRIL 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Each party bear their own costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 197 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	NOZA HOLDINGS PTY LTD (ACN 098 410 881) Respondent

JUDGES:	EDMONDS, JESSUP AND ROBERTSON JJ
DATE OF ORDER:	20 APRIL 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 759 of 2009 be set aside.

3.The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 4 June 2009 against its deemed assessment of tax for the year of income ended 30 November 2004 be affirmed.

4.The appellant pay 80% of the respondent’s costs of proceeding VID 759 of 2009.

5.Each party bear their own costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 198 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	NOZA HOLDINGS PTY LTD (ACN 098 410 881) Respondent

JUDGES:	EDMONDS, JESSUP AND ROBERTSON JJ
DATE OF ORDER:	20 APRIL 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.Paragraph 2 of the orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 758 of 2009 be set aside.

3.The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 4 June 2009 against its assessment of tax for the year of income ended 30 November 2003 dated 6 April 2009 be set aside and in lieu thereof it is ordered that the objection be allowed in part and the matter be remitted to the appellant to re-assess by allowing a deduction in the amount of $166,003,257 in addition to the $4,980,097 already allowed, against the respondent’s assessable income for the year ended 30 November 2003.

4.Each party bear their own costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 200 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	NOZA HOLDINGS PTY LTD (ACN 098 410 881) Respondent

JUDGES:	EDMONDS, JESSUP AND ROBERTSON JJ
DATE OF ORDER:	20 APRIL 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 761 of 2009 be set aside.

3.The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 15 June 2007 against its deemed assessment of tax for the year ended 30 November 2005 be affirmed.

4.The appellant pay 80% of the respondent’s costs of proceeding VID 761 of 2009.

5.Each party bear their own costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 201 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	ITW AFC PTY LIMITED (ACN 091 191 865) Respondent

JUDGES:	EDMONDS, JESSUP AND ROBERTSON JJ
DATE OF ORDER:	20 APRIL 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 764 of 2009 be set aside.

3.The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 12 June 2007 against its deemed assessment of tax for the year of income ended 30 November 2002 be affirmed.

4.The appellant pay 80% of the respondent’s costs of proceeding VID 764 of 2009.

5.Each party bear their own costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 195 of 2011 VID 196 of 2011 VID 197 of 2011 VID 198 of 2011 VID 200 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	NOZA HOLDINGS PTY LTD (ACN 098 410 881) Respondent

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 201 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant
AND:	ITW AFC PTY LIMITED (ACN 091 191 865) Respondent

JUDGES:	EDMONDS, JESSUP AND ROBERTSON JJ
DATE:	20 APRIL 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. On 28 March 2012 we published our reasons for judgment but directed the parties to bring in short minutes of order to give effect to the reasons for judgment and to file written submissions on the issues of the costs of the appeals and costs before the primary judge: see Commissioner of Taxation v Noza Holdings Pty Ltd [2012] FCAFC 43.

2. In light of those submissions, the following sentence in relation to one of the six appeals requires amendment. At [93] of our reasons for judgment we said that the appeal in respect of Noza for the 2003 income year (VID 198/2011) should be dismissed.  In respect of VID 198/2011 the parties agree that, rather than dismissing the appeal, it is necessary that the appeal be allowed in part and that there be consequential orders. We agree. A corrigendum will be issued in the following terms:

   In [93] of the Reasons for Judgment, delete the second sentence and substitute the following:

   ‘The appeal in respect of Noza for the 2003 income year (VID 198/2011) should be allowed in part, subject to setting aside the Commissioner’s objection decision and ordering that, on remission to the Commissioner, the objection be allowed in part by allowing a deduction in the amount of $166,003,257 in addition to the $4,980,097 already allowed.’

3. This leaves the question of costs of the appeals and of the proceedings before the primary judge.

   Costs of the appeals

4. At trial, having regard to the relative success of the parties, it was ordered by consent that the Commissioner pay 80% of the respondents’ costs in each proceeding.

5. In our view it is also appropriate that costs orders be made across all the appeals: they were interlinked.

6. The Commissioner submits that the parties should pay their own costs of the appeals. The respondents submit that the Commissioner should pay 90% of the respondents’ costs of the appeals.

7. In our view each party should bear its own costs of the appeals to reflect the fact that on appeal Noza succeeded in relation to the 2003 income year but the Commissioner succeeded in relation to the 2002, 2004 and 2005 income years on an issue common to those years. Further, the respondents applied unsuccessfully to file a proposed notice of contention, this application been the subject of a round of written submissions after the appeals were heard.

   Costs of the proceedings before the primary Judge

8. In the reasons for judgment given on 28 March 2012, we indicated that we were inclined to the view that the costs orders below should be set aside and the Commissioner be ordered to pay a lesser percentage of the applicants’ costs before the primary judge. Having considered the written submissions of the parties on this issue we are not persuaded that the extent of the Commissioner's success on the appeals justifies a variation to the 80% proportion ordered, by consent, at first instance. It is to be recalled that a large proportion of the trial was concerned with the Part IVA issue on which the present respondents succeeded.

I certify that the preceding eight (8)   numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Edmonds, Jessup and Robertson.

Associate:

Dated:       20 April 2012