mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131
Outcome: cited
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )
Case: Casimaty v Commissioner of Taxation 1388 FCA (10 December 1997)
Outcome: cited
However, the fact that in realising the asset the taxpayer has engaged in activities which were planned, organised and coherent, and which produced profits considerably more than could otherwise have been obtained, does not mean that an advantageous realisation converts into a profit-making scheme: Scottish Australian Mining Co v Federal Commissioner of Taxation [1950] HCA 16 ; (1950) 81 CLR 188, Gibbs CJ in Whitford's Beach 150 CLR at 369. Examples of the application of this principle can be seen in Williams 127 CLR per Barwick CJ at 240-241, Menzies J at 245, Gibbs J at 249-251, Gutwenger v Commissioner of Taxation (1995) 55 FCR 95 and Casimaty v Commissioner of Taxation 1388 FCA (10 December 1997). Relevance of purpose
Case: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Outcome: considered
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] ) 63 In relation to question e, the applicant has not contended that there was no material upon which the decision of the Tribunal could properly be based only that there was a preponderance of evidence against the Tribunal's findings. As the Court pointed out in Collins , a finding of fact against the weight of evidence does not give rise to a question of law.
Case: Commissioner of Taxation (Cth) v Spedley Securities Ltd (1988) 19 ATR 938
Outcome: cited
Although the High Court in Myer Emporium [1987] HCA 18 ; 163 CLR 199 found that receipts from sale of capital assets generated as profit components of profit-making schemes were capable of constituting income, equally clearly the decision is not authority for the proposition that all gains made by business entities are assessable income. As pointed out by the Full Court of the Federal Court in Commissioner of Taxation (Cth) v Spedley Securities Ltd (1988) 19 ATR 938 at 942, such a proposition would be contrary to authority, to the Act itself, and to basic concepts concerning the distinction between capital and income (note similar comments by the Hill J in Cooling 22 FCR at 55 and again by Hill J (with whom the other members of the Court concurred) in Westfield 28 FCR at 342). Nature of purpose
Case: Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414
Outcome: cited
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )
Case: Federal Commissioner of Taxation v Munro (1997) 97 ATC 5041
Outcome: cited
Like in the case before me, the applicable legislation in Deledio was not silent on issues of proof. In relation to the first issue in this case with respect to onus of proof, it is clear in light of s 14ZZK(b)(i) TA Act that the taxpayer in this case bore the onus of proof that the amended assessment was excessive. The nature of the onus of proof in the context of this legislation has been recognised in numerous decisions, including McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284 (although McCormack was decided under predecessor legislation), Federal Commissioner of Taxation v Munro (1997) 97 ATC 5041 and Vu v Commissioner of Taxation [2006] FCA 889. Further, it is clear on the authorities that the taxpayer, in its application before the Tribunal, must prove its case affirmatively on the balance of probabilities: McCormack 143 CLR at 303 per Gibbs J, Munro 97 ATC 5041, Vu v Commissioner of Taxation [2006] FCA 889 at [8] .
Case: Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101
Outcome: cited
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )
Case: Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645
Outcome: cited
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )
Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Outcome: cited
Appeals from the Tribunal are not appeals in the strict sense as they lie within the original jurisdiction of the court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581, Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [1] , (2003) 76 ALD 321. A party to a proceeding before the Tribunal may appeal to the Court from any decision of the Tribunal in that proceeding, but only on questions of law: s 44(1) Administrative Appeals Tribunal Act 1975 ("AAT Act").
Case: Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81
Outcome: cited
In my view, this misconceives the obligation of the taxpayer when challenging a determination of the Commissioner under the legislation, and the onus borne by the taxpayer as a result of s 14ZZK(b)(i) TA Act . As Jacobs J explained in McCormack 143 CLR at 314, there is, by virtue of the section, a rebuttable presumption of law that an assessment is not excessive, and the onus is on the taxpayer to rebut that presumption. This means, for example, that where the evidence is equivocal the applicant in an appeal before the Tribunal against an assessment fails to discharge its onus : Mason J in Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89-90, approved in McCormack 143 CLR by Gibbs J at 303-304, Stephen J at 306, Jacobs J at 314 and Murphy J at 323. Contending that the onus of proof under s 14ZZK(b) only arises in the limited circumstances submitted by the applicant misstates the effect of that provision. In my view no error of law appears in this respect from paras 27-30 and 35 of the Tribunal's Reasons for Decision.
Case: Gutwenger v Commissioner of Taxation (1995) 55 FCR
Outcome: cited
However, the fact that in realising the asset the taxpayer has engaged in activities which were planned, organised and coherent, and which produced profits considerably more than could otherwise have been obtained, does not mean that an advantageous realisation converts into a profit-making scheme: Scottish Australian Mining Co v Federal Commissioner of Taxation [1950] HCA 16 ; (1950) 81 CLR 188, Gibbs CJ in Whitford's Beach 150 CLR at 369. Examples of the application of this principle can be seen in Williams 127 CLR per Barwick CJ at 240-241, Menzies J at 245, Gibbs J at 249-251, Gutwenger v Commissioner of Taxation (1995) 55 FCR 95 and Casimaty v Commissioner of Taxation 1388 FCA (10 December 1997). Relevance of purpose
Case: McAuliffe v Comcare [2002] FCA 769
Outcome: cited
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )
Case: McCurry v Commissioner of Taxation , unreported Federal Court of Australia, 15 May 1998
Outcome: cited
Although s 26(a) ITAA 1936 specifically deemed, as income, profit arising from the sale by the taxpayer of any property acquired for the purpose of profit-making by sale, or from the carrying on or carrying out of any profit-making undertaking or scheme, it is clear that the acquisition of a property for profit-making by sale of that property can, of itself, give rise to assessable income within the ordinary usage of the word ( Commissioner of Taxation v The Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199; and note the useful discussion of the history of this principle by Davies J in McCurry v Commissioner of Taxation , unreported Federal Court of Australia, 15 May 1998).