The Executors of the Estate of the late Peter Fowler and Commissioner of Taxation (Taxation)

The Executors of the Estate of the late Peter Fowler (the taxpayer) sought review of a decision by the Commissioner of Taxation concerning the application of the small business capital gains tax (CGT) concessions. The dispute centred on whether the taxpayer qualified for these exemptions, specifically relating to the active asset test and the main use of an asset. The matter was heard by Deputy President S E Frost of the Tribunal.

The core legal issues before the Tribunal were whether the relevant asset qualified as an "active asset" for the purposes of the small business CGT concessions, and if so, whether its "main use" was in carrying on a business. Additionally, the Tribunal considered whether the taxpayer had failed to take reasonable care, which would attract an administrative penalty.

The Tribunal affirmed the objection decision in relation to the primary tax liability, indicating that the taxpayer was entitled to the small business CGT exemptions. However, the Tribunal set aside the objection decision concerning the administrative penalty. The Tribunal found that the taxpayer was not liable for the administrative penalty under s 284-75(1) of the relevant legislation, allowing the objection in full regarding this aspect.