Martinazzo and Commissioner of Taxation

[2009] AATA 62

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 62

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3528

TAXATION APPEALS DIVISION		)
Re		TG & A MARTINAZZO

Applicant

And COMMISSIONER OF TAXATION 

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member 

Date30 January 2009

PlacePerth

Decision The Tribunal affirms the decisions under review.

.     sgd. Andre Sweidan

Senior Member

CATCHWORDS

GST - whether applicant partnership owned items supplied - whether taxable supply made - decision under review affirmed

LEGISLATION

A New Tax System (Goods and Services Tax) Act 1999, ss 9-5, 9-40,9-70

REASONS FOR DECISION

30 January 2009 Mr A Sweidan, Senior Member    

Background

1.      Paragraphs 1 to 15 inclusive of the Tribunal’s decision in application no’s 2007/2049-2051 and 2007/2056-2057 by Thomas and Anna Martinazzo are incorporated by reference, and should be read as forming part of this decision.

Issues

2.      The applicant partnership has been assessed for GST of $34,500 in respect of the supply of a crane and frame to Caelli on 20 May 2002 and 19 June 2002  

3.      The issue is whether the applicant made a taxable supply of the crane and frame during the quarter ended 30 June 2002.  The answer turns upon whether the applicant was the owner of the crane and frame at the time of the supply to Caelli.

4.      The applicant has also been assessed for GST of $6,250 in respect of the supply of a Kobelco Crane to Seacrest Homes on 19 June 2003. 

5.      The issue is whether the applicant made a taxable supply of the Kobelco Crane during the quarter ended 30 June 2003.  The answer turns upon whether the applicant was the owner of the Kobelco Crane at the time of the supply to Caelli.

6.      The applicant lodged objections dated 5 January 2007 to both assessments which were disallowed 22 May 2007 and the applicant seeks a review of that decision.

Ownership of crane and frame

7.      Paragraphs 33 – 68 of the Tribunal’s decisions referred to above are incorporated by reference, and should be read as forming part of this decision.

Ownership of Kobelco crane

8.      Paragraphs 72 – 84 of the Tribunal’s decisions referred to above are incorporated by reference, and should be read as forming part of this decision.

Tribunal’s Findings

9. GST is payable on taxable supplies pursuant to subsection 7-1 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).  The applicant made taxable supplies of the crane and frame, and the Kobelco Crane, pursuant to section 9-5.

10.     The applicant must pay GST on the taxable supply of the crane and frame, and the Kobelco Crane (section 9-40).  The amount of the GST is 10% of the value of the taxable supply (section 9-70).  Therefore the Tribunal finds that :

10.1GST of $34,500 is payable by the applicant in respect of the supply of the crane ($29,000) and frame ($5,500) and has been correctly included in the GST net amount in the Notice of Assessment of GST net amount for the quarter ended 30 June 2002.

10.2GST of $6,250 is payable by the applicant in respect of the supply of the Kobelco Crane and has been correctly included in the GST net amount in the Notice of Assessment of GST net amount for the quarter ended 30 June 2003. 

Decision

11.     The Respondent’s objection decisions are affirmed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:       sgd. June Rainey
  Associate

Date/s of Hearing  1 and 2 December 2008
Date of Final Submissions       19 December 2008
Date of Decision  30 January 2009
Counsel for the Applicant         Mr P Bevilacqua
Solicitor for the Applicant          Butcher Paull and Calder
Counsel for the Respondent     Ms L Black
Solicitor for the Respondent     Mr M Vincent
  Australian Taxation Office