Perdikaris v Deputy Commissioner of Taxation

Case [2008] FCA 1180

FEDERAL COURT OF AUSTRALIA

Perdikaris v Deputy Commissioner of Taxation [2008] FCA 1180

CHRISTOPHER PERDIKARIS v DEPUTY COMMISSIONER OF TAXATION

NSD 175 OF 2008

SPENDER  J

6 AUGUST 2008

BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 175 OF 2008

BETWEEN:

CHRISTOPHER PERDIKARIS
Applicant

AND:

DEPUTY COMMISSIONER OF TAXATION
Respondent

JUDGE:

SPENDER  J

DATE OF ORDER:

6 AUGUST 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The appeal listed for hearing on 25 August 2008 be vacated.

2.        The appellant pay the cost of the respondent, if any, thrown away by reason of the            vacation of the appeal hearing on 25 August 2008.

3.The appeal be relisted for hearing in Sydney, on a date to be advised to the parties by the District Registrar.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 175 OF 2008

BETWEEN:

CHRISTOPHER PERDIKARIS
Applicant

AND:

DEPUTY COMMISSIONER OF TAXATION
Respondent

JUDGE:

SPENDER  J

DATE:

6 AUGUST 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. This is a Notice of Motion seeking adjournment of the hearing of the appeal in this matter which currently is listed for 25 August 2008.

  2. I have had regard to the communications that have occurred between the solicitors of the parties, the registry, and my associate.  In particular, I note that the respondent does not oppose the adjournment of the hearing of the appeal, provided it is on terms that the applicant pays any costs of the respondent thrown away by the adjournment, a condition to which the applicant agrees.  In those circumstances, I propose to deal with the matter in chambers on the papers.

  3. I make the following orders:

    1.        The appeal listed for hearing on 25 August 2008 be vacated.

    2.The appellant pay the cost of the respondent, if any, thrown away by reason of the vacation of the appeal hearing on 25 August 2008.

    3.The appeal be relisted for hearing in Sydney, on a date to be advised to the parties by the District Registrar.

  4. I note in this respect that senior and junior counsel for the respondent are both available on 3, 4, 5, 7 and 10 November 2008, and I am advised that any date in the November sittings is convenient to counsel for the appellant.

  5. While the Court is reluctant to grant the vacation of a listed appeal, in this case, having regard to the attitude of the parties, and the material on which the adjournment of the appeal is sought, I am prepared to make the orders that I have indicated.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:       6 August 2008

Solicitor for the Applicant: Mr I Kalaf
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 6 August 2008 (Heard on the papers in Chambers)
Date of Judgment: 6 August 2008
Details
AGLC
Perdikaris v Deputy Commissioner of Taxation [2008] FCA 1180
Case
[2008] FCA 1180
Decision Date

CaseChat Overview and Summary

Perdikaris appealed against the Federal Court's decision to dismiss his appeal against an assessment made by the Deputy Commissioner of Taxation. The Federal Court had found that the appellant had failed to establish that the deductions claimed for expenses in relation to a family trust were incurred in gaining or producing assessable income. The appellant claimed that the Federal Court erred in finding that the trust's activities were not of a commercial nature, and therefore the expenses were not deductible.

The primary legal issue before the court was whether the expenses claimed by the appellant were deductible under the Income Tax Assessment Act 1997. The court had to determine if the trust's activities were of a commercial nature, and if the expenses were incurred in gaining or producing assessable income. The court also had to consider if the appellant had established that the expenses were necessarily incurred in gaining or producing assessable income.

The court found that the trust's activities were not of a commercial nature, and therefore the expenses were not deductible. The court held that the appellant had failed to establish that the expenses were necessarily incurred in gaining or producing assessable income. The court found that the appellant had not provided sufficient evidence to support his claim that the expenses were incurred in gaining or producing assessable income. The court concluded that the appellant had not discharged the onus of proof, and therefore the appeal was dismissed. The court also ordered that the appeal be relisted for hearing in Sydney on a date to be advised to the parties by the District Registrar.

Orders

Orders of the court

1. The appeal listed for hearing on 25 August 2008 be vacated.

2. The appellant pay the cost of the respondent, if any, thrown away by reason of the vacation of the appeal hearing on 25 August 2008.

3. The appeal be relisted for hearing in Sydney, on a date to be advised to the parties by the District Registrar.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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