Earlmist Pty Ltd as the Trustee for the Earlmist Unit Trust and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal considered a dispute between Earlmist Pty Ltd as the Trustee for the Earlmist Unit Trust (the Applicant) and the Commissioner of Taxation (the Respondent) concerning claims for approximately $7.2 million in input tax credits. The applications related to five property developments undertaken by the 'Westpoint group', controlled by property developer Mr Norman Carey. The Applicant, a member of the Westpoint group, sought to claim these credits for acquisitions it alleged were made in relation to these developments.

The primary legal issues before the Tribunal were whether the Applicant had made taxable acquisitions and, consequently, whether it was entitled to claim input tax credits under the *A New Tax System (Goods and Services Tax) Act 1999* (Cth). A related issue concerned the admissibility of certain documents as evidence, as many of the documents the Applicant sought to rely upon were unstamped, raising questions about their provenance and reliability. The Tribunal also had to determine if the Applicant could meet the burden of proof required under section 14ZZK of the *Taxation Administration Act 1953* (Cth) to establish its entitlement to the claimed credits.

The Tribunal found that the Applicant had not discharged its burden of proof. While some evidence, such as a Development Management Cost Summary and trial balance entries, was presented to corroborate the Applicant's claims regarding project costs and values, the Tribunal noted inconsistencies and a lack of sufficient detail. Specifically, the evidence did not adequately demonstrate how the specific amounts claimed in the project cost summaries were calculated, nor did it consistently align with agreements between the parties. The Tribunal also observed that tax invoices were generated around the time receivers and managers were appointed to the trustee companies, and that documentation was sometimes inconsistent with other evidence. The difficulty the Applicant faced in obtaining documentation seized by the Australian Securities and Investments Commission further complicated its ability to substantiate its claims.

The Tribunal affirmed the Commissioner's reviewable decisions in all applications, concluding that the Applicant was not entitled to the input tax credits claimed.