Cyonara Snowfox Pty Ltd ACN 079 510 795 v Commissioner of Taxation

[2013] HCASL 80

CYONARA SNOWFOX PTY LTD ACN 079 510 795

v

COMMISSIONER OF TAXATION

[2013] HCASL 80
B7/2013

1. Between 2004 and 2007, the applicant, a property developer, sold five particular lots in a subdivision.  On 24 May 2007, the respondent issued a notice of assessment advising that the applicant had unpaid Goods and Services Tax ("GST") in respect of the supplies.  The respondent disallowed the applicant's objection to the notice of assessment on 27 May 2008.  After the applicant commenced proceedings in the Administrative Appeals Tribunal ("the Tribunal"), the respondent conceded that it had overstated, in one aspect, the net amount of GST payable. A notice of amended assessment, dated 4 February 2010, reflects that concession.

2. On 25 February 2011, the Tribunal found for the respondent. The Tribunal rejected, as inconsistent with the statutory scheme, a contention that the applicant was entitled to choose to apply the margin scheme under Div 75 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) after the time of supply in working out the GST payable on two of the sales. Additionally, the Tribunal found that the applicant had not proved that one sale was a supply of a "going concern" and hence GST-free. The Tribunal was not satisfied that the applicant had carried on a leasing enterprise until the day of supply because its conduct at the time was inconsistent with a lease being in place, and it failed to produce an executed copy of the key lease, or to adequately explain its absence. The Tribunal also found that the respondent's concession had not rendered the original notice of assessment invalid.

3. On 4 December 2012, a Full Court of the Federal Court of Australia (Greenwood, Collier and Middleton JJ) dismissed an appeal against the Tribunal's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and an application for judicial review of the Tribunal's decision that the notice of assessment of 24 May 2007 was a valid notice. The Tribunal's construction of the margin scheme provisions was correct; the construction argued for by the applicant would result in an anomaly. The applicant's arguments on the "going concern" issue were rejected as simply an attempt to re‑agitate the merits of the Tribunal's factual findings. The Full Court also held that the notice of assessment was valid.

4. The applicant now seeks an extension of time in which to file its application for special leave to appeal to this Court.  The application continues to advance grounds considered below and fails to identify an error of law in the Full Court's decision.  The extension should not be granted.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
5 June 2013 P.A. Keane