mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216
Outcome: cited
Section 177D applies Part IVA to any scheme where a taxpayer, described in s 177D(a) as 'the relevant taxpayer' has obtained or would but for s 177F obtain a tax benefit in connection with the scheme and, having regard to eight matters identified in s 177D(b), it would be concluded that the person or one of the persons who entered into or carried out the scheme or any part of the scheme did so for the purpose of enabling the relevant taxpayer to obtain a tax benefit in connection with the scheme or, for the purpose of enabling 'the relevant taxpayer and another taxpayer or other taxpayers each to obtain a tax benefit in connection with the scheme (whether or not that person who entered into or carried out the scheme or any part of the scheme is the relevant taxpayer or is the other taxpayer or one of the other taxpayers)'. The concepts of 'tax benefit' (s 177C), 'scheme' (s 177A) and 'scheme to which this Part applies' (s 177D) have, viewed objectively, an inter-related operation in s 177F in deciding whether the power conferred upon the Commissioner by s 177F(1)(a) can be exercised ( Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at [37] ).
Case: FCT v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404
Outcome: cited
In determining whether either appellant has obtained a tax benefit in connection with the scheme the Commissioner was required under s 177C(1)(a) to consider whether an amount not included by the taxpayer in his or her assessable income as returned would have been included had the scheme not been implemented. That consideration contemplates the most likely prediction of future events absent the sequence of distributions and gifts interposed after or from the distribution by OPSL as trustee of the PGUT. A reference to obtaining a tax benefit is also to be read as reference to an amount that 'might reasonably be expected to have been included'. That phrase seems to contemplate a lower threshold of prediction although in Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at p 385, the Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) concluded that a 'reasonable expectation' involves 'a prediction as to events which would have taken place if the relevant scheme had not been entered into or carried out and the prediction must be sufficiently reliable for it to be regarded as reasonable'. The Court in FCT v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at p 424 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ), observed that in establishing, for the purposes of s 177C(1)(a), a tax benefit by reason of the non-inclusion of assessable income in a taxpayer's assessable income, 'it is sufficient that at least the amount in question might reasonably have been included in the assessable income had the scheme not been entered into or carried out'.
Case: Richardson v Federal Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192
Outcome: cited
However, the appeal to this Court is confined to the resolution of the question of law only. The Commissioner made a determination in reliance upon s 177F(1)(a) that Farrago as trustee of the AM Trust had obtained a tax benefit of $3,232,813.00 being an amount not included in its assessable income in its trustee capacity. That determination posits a prediction which is an alternative to and different from the prediction that NOPL would have distributed the stream of income it received to each appellant equally. The Commissioner is entitled to adopt, especially in the context of complex arrangements, alternative views of what would or might reasonably have been expected to have occurred and make alternative determinations of an amount not included in the assessable income of particular taxpayers ( Richardson v Federal Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192 ; Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29 ; (1988) 165 CLR 55 ; Deputy Commissioner of Taxation v Richard Walter Pty Limited [1995] HCA 23 ; (1995) 183 CLR 168 per Mason CJ at p 188, Brennan J at p 202, Deane and Gaudron JJ at p 214, Dawson J at p 217, Toohey J at p 229 and McHugh J at p 238). The issue of the validity of the determination made by the Commissioner concerning Farrago is not (as it could not be) that no basis on the facts subsisted for the making of the determination. The question of law concerning validity is the lack of symmetrical treatment between the alternative and multiple determinations made to the particular taxpayers and the issue of amended assessments to different taxpayers in respect of what is described as the one stream of income. The appellants say that FCT v Richard Walter is to be distinguished on its facts from the present case as although the Court recognised that 'alternative assessments' might properly issue to 'two [different] taxpayers' in respect of the 'same item of income' (per Brennan J at p 202) the Court necessarily although implicitly recognised that the validity of such alternative assessments involves the making of alternative determinations (based on the prediction contemplated by s 177C(1)(a)) in respect of the two or more taxpayers leading to an assessment issued to each taxpayer the subject of each determination. Thus, it is contended that a determination made in respect of a tax benefit in a particular amount obtained by taxpayer A cannot support an assessment issued to taxpayer B for the inclusion of that amount in the assessable income of B. As a result, the appellants say not only is the determination made in the alternative to Farrago invalid as a proper exercise of the conferred power as it resulted in an amended assessment to Mr McCutcheon but the alternative determinations addressed to Mr McCutcheon and Mrs McCutcheon are also invalid.
Case: Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29 ; (1988) 165 CLR 55
Outcome: cited
However, the appeal to this Court is confined to the resolution of the question of law only. The Commissioner made a determination in reliance upon s 177F(1)(a) that Farrago as trustee of the AM Trust had obtained a tax benefit of $3,232,813.00 being an amount not included in its assessable income in its trustee capacity. That determination posits a prediction which is an alternative to and different from the prediction that NOPL would have distributed the stream of income it received to each appellant equally. The Commissioner is entitled to adopt, especially in the context of complex arrangements, alternative views of what would or might reasonably have been expected to have occurred and make alternative determinations of an amount not included in the assessable income of particular taxpayers ( Richardson v Federal Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192 ; Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29 ; (1988) 165 CLR 55 ; Deputy Commissioner of Taxation v Richard Walter Pty Limited [1995] HCA 23 ; (1995) 183 CLR 168 per Mason CJ at p 188, Brennan J at p 202, Deane and Gaudron JJ at p 214, Dawson J at p 217, Toohey J at p 229 and McHugh J at p 238). The issue of the validity of the determination made by the Commissioner concerning Farrago is not (as it could not be) that no basis on the facts subsisted for the making of the determination. The question of law concerning validity is the lack of symmetrical treatment between the alternative and multiple determinations made to the particular taxpayers and the issue of amended assessments to different taxpayers in respect of what is described as the one stream of income. The appellants say that FCT v Richard Walter is to be distinguished on its facts from the present case as although the Court recognised that 'alternative assessments' might properly issue to 'two [different] taxpayers' in respect of the 'same item of income' (per Brennan J at p 202) the Court necessarily although implicitly recognised that the validity of such alternative assessments involves the making of alternative determinations (based on the prediction contemplated by s 177C(1)(a)) in respect of the two or more taxpayers leading to an assessment issued to each taxpayer the subject of each determination. Thus, it is contended that a determination made in respect of a tax benefit in a particular amount obtained by taxpayer A cannot support an assessment issued to taxpayer B for the inclusion of that amount in the assessable income of B. As a result, the appellants say not only is the determination made in the alternative to Farrago invalid as a proper exercise of the conferred power as it resulted in an amended assessment to Mr McCutcheon but the alternative determinations addressed to Mr McCutcheon and Mrs McCutcheon are also invalid.
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
The appellants say that they use the term 'no evidence' in the 'strict sense' of an error of law on the part of the Tribunal in reaching a conclusion unsupported by any evidence before the Tribunal rather than as an impermissible attempt to challenge a finding of fact on an appeal concerned only with questions of law ( TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175). The appellants say, 'where is the evidence upon which the Tribunal could conclude as a reasonable prediction of events, absent the scheme, that Mr and Mrs McCutcheon would have been likely to receive an equal distribution of the income stream of $3,232,813.00?' The appellants say the evidence of historical distributions by the trustee of the P &amp; A Trust is entirely inconsistent with such a hypothesis. The Tribunal reached these conclusions. At [145], the Tribunal agreed, 'with the reasons and submissions advanced by [the Commissioner] in connection with the quantification of the tax benefit in the case of each of Mr and Mrs McCutcheon for reasons which will be explained next'. At [146], the Tribunal said this: 146. The Tribunal is of the opinion that while the scheme was entered into for the purpose of obtaining a tax benefit in the case of both Applicants (the non-inclusion of assessable income within section 177C(1)(a)), nevertheless it is not correct to say, as the respondent contended that the full amount of the non-included assessable income would have been shared equally by the applicants. 43 The Tribunal noted that the previous distribution history concerning the P &amp; A Trust indicated that there were persons apart from the appellants who had received distributions. The Tribunal concluded that there was no evidence before it upon which it could act in order to determine what distributions the appellants might have caused the trustee to make, had the scheme not been entered into or carried out. The appellants contended before the Tribunal that evidence of historical distributions provided a basis on which the Tribunal could conclude that distributions would not have been made consistent with the hypothesis. The Tribunal examined the history of distributions and was unpersuaded that those distributions provided support for the appellants' contentions.
Case: Byrnes v Repatriation Commission [1993] HCA 48 ; (1993) 177 CLR 574
Outcome: followed
If there is no relevant SoP, s 120A(3) of the VE Act does not apply: s 120A(4). The third step must therefore be taken without reference to any SoP, in accordance with the approach summarised in Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564, at 571, per curiam : 'The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis'. See Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473, at 483 [55], per curiam ; Bull v Repatriation Commission (2001) 34 AAR 326, at 329-330 [13]-[15], per Emmett and Allsop JJ.
Case: Collins v Administrative Appeals Tribunal [1007] FCAFC 111
Outcome: cited
The approach to be taken to the operation of ss 120 and 120A of the VE Act was authoritatively laid down by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82: see Collins v Administrative Appeals Tribunal [2007] FCAFC 111 , at [5], per Lindgren J; at [30], per Allsop J. The relevant passage in Deledio is as follows (at 97-98): '1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority ... 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP ... If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved'.
Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: followed
The approach to be taken to the operation of ss 120 and 120A of the VE Act was authoritatively laid down by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82: see Collins v Administrative Appeals Tribunal [2007] FCAFC 111 , at [5], per Lindgren J; at [30], per Allsop J. The relevant passage in Deledio is as follows (at 97-98): '1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority ... 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP ... If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved'.
Case: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422
Outcome: cited
In Bull v Repatriation Commission , at 330 [16] Emmett and Allsop JJ regarded the exposition of a ' reasonable hypothesis ' in East v Repatriation Commission (1987) 16 FCR 517, as authoritative. In East the Court said this (at 532-533): 'The adoption of Brennan J's notion [in his dissenting judgment in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422] of a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link even prima facie as a fact. The meaning of the phrase "reasonable hypothesis" was felicitously explained by a Veterans' Review Board ... "A hypothesis may be conveniently defined as : 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary. ... The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable." We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities '. (Emphasis added.)
Case: Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473
Outcome: cited
If there is no relevant SoP, s 120A(3) of the VE Act does not apply: s 120A(4). The third step must therefore be taken without reference to any SoP, in accordance with the approach summarised in Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564, at 571, per curiam : 'The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis'. See Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473, at 483 [55], per curiam ; Bull v Repatriation Commission (2001) 34 AAR 326, at 329-330 [13]-[15], per Emmett and Allsop JJ.
Case: Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472
Outcome: cited
As to the jurisdictional question, s 39B(1A)(a) of the Judiciary Act confers original jurisdiction on the Federal Court of Australia in any matter arising under the Constitution or involving its interpretation. Section 39B(1A)(c) confers jurisdiction upon the Court, relevantly for present purposes, in any matter arising under any laws made by the Parliament. The Bank claims that its 'rights and entitlements' as a party to a services contract are not affected by s 106 of the IR Act. That claim seems to me to be the assertion of a right, or reliance upon an answer to a claim for an order under s 106 of the State Act, conferred by or under the Commonwealth Act. The claim thus arises under the Commonwealth Statute ( Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 ; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 at 154 per Latham CJ; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 ; and Felton v Mulligan &amp; Anor [1971] HCA 39 ; (1971) 124 CLR 367. The controversy also involves a matter arising under the Constitution .
Case: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141
Outcome: cited
As to the jurisdictional question, s 39B(1A)(a) of the Judiciary Act confers original jurisdiction on the Federal Court of Australia in any matter arising under the Constitution or involving its interpretation. Section 39B(1A)(c) confers jurisdiction upon the Court, relevantly for present purposes, in any matter arising under any laws made by the Parliament. The Bank claims that its 'rights and entitlements' as a party to a services contract are not affected by s 106 of the IR Act. That claim seems to me to be the assertion of a right, or reliance upon an answer to a claim for an order under s 106 of the State Act, conferred by or under the Commonwealth Act. The claim thus arises under the Commonwealth Statute ( Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 ; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 at 154 per Latham CJ; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 ; and Felton v Mulligan &amp; Anor [1971] HCA 39 ; (1971) 124 CLR 367. The controversy also involves a matter arising under the Constitution .
Case: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: cited
As to the jurisdictional question, s 39B(1A)(a) of the Judiciary Act confers original jurisdiction on the Federal Court of Australia in any matter arising under the Constitution or involving its interpretation. Section 39B(1A)(c) confers jurisdiction upon the Court, relevantly for present purposes, in any matter arising under any laws made by the Parliament. The Bank claims that its 'rights and entitlements' as a party to a services contract are not affected by s 106 of the IR Act. That claim seems to me to be the assertion of a right, or reliance upon an answer to a claim for an order under s 106 of the State Act, conferred by or under the Commonwealth Act. The claim thus arises under the Commonwealth Statute ( Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 ; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 at 154 per Latham CJ; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 ; and Felton v Mulligan &amp; Anor [1971] HCA 39 ; (1971) 124 CLR 367. The controversy also involves a matter arising under the Constitution .