Richardson, Ian v Commissioner of Taxation

[1997] FCA 1380

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 144  of   1997

ON APPEAL FROM ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT McDONALD, MR ELSUM AND MR McLEAN GIVEN ON 13 MARCH, 1997

BETWEEN:

        IAN RICHARDSON

        Appellant

AND:

        COMMISSIONER OF TAXATION

        Respondent

JUDGE:

MERKEL J

DATE OF ORDER:

9 DECEMBER 1997

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal is allowed.

2.        The decision of the Administrative Appeals Tribunal is set aside.

3.The matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law after the hearing of such further evidence as the parties may wish to lead in relation to the determination of the net income of the trust estate of the Richardson Family Trust for trust purposes for the year of income ended 30 June 1988.

4.        The respondent pay 50 per cent of the appellant’s taxed costs of and   incidental to the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 144  of   1997

ON APPEAL FROM ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT McDONALD, MR ELSUM AND MR McLEAN GIVEN ON 13 MARCH, 1997

BETWEEN:

        IAN RICHARDSON

        Appellant

AND:

        COMMISSIONER OF TAXATION

        Respondent

JUDGE:

MERKEL J

DATE OF ORDER:

9 DECEMBER 1997

WHERE MADE:

MELBOURNE

REASONS FOR JUDGMENT

On 25 November 1997 I delivered judgment in this matter and granted the parties leave to make submissions as to the form of the orders to give effect to my judgment and as to costs.  The parties have each filed draft orders and they are agreed as to the following orders, which I now make:

1.        The appeal is allowed.

2.        The decision of the Administrative Appeals Tribunal is set aside.

3.The matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law after the hearing of such further evidence as the parties may wish to lead in relation to the determination of the net income of the trust estate of the Richardson Family Trust for trust purposes for the year of income ended 30 June 1988.

The parties are not agreed as to whether declaratory relief is appropriate in relation to the operation of s 97(1) of the Income Tax Assessment Act 1936 (Cth). In all the circumstances, including the fact that further evidence is to be given, and because of the view expressed in my reasons for judgment that “it is appropriate that the matter be remitted to the AAT to be determined in accordance with law and in particular with these reasons for judgment” (at 25), it is not appropriate to make a declaratory order at this stage.

I also received submissions from the parties on the question of costs.  After receiving the submissions I am confirmed in the view expressed tentatively in my reasons for judgment that in all the circumstances the Commissioner should pay 50 per cent of the appellant’s taxed costs.  I therefore make the following further order:

4.        The respondent pay 50 per cent of the appellant’s taxed costs of and   incidental to the appeal.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate:       
Dated:            9 December 1997

Written submission for the Applicant:	Mr P K Searle
Solicitor for the Applicant:	T J Mulvany & Co
Written submission for the Respondent:	Australian Government Solicitor
Date of Order:	9 December 1997