mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commissioner of Taxation v Citylink Melbourne Ltd [2006] HCA 35 ; (2006) 228 ALR 301 
Outcome: referred to
The further response of Lend Lease to what was propounded by the Commissioner concerning the value of the 'right to share in Westpac dividends' was that the Commissioner thereby unjustifiably and impermissibly elevated 'a supposed economic equivalence to the status of a contractual right capable of comprising consideration'. Lend Lease cited in that regard Commissioner of Taxation v Citylink Melbourne Ltd [2006] HCA 35 ; (2006) 228 ALR 301, where at [95], Crennan J (with whose reasons Gleeson CJ and Gummow J agreed), observed as follows: '... it was contended that the net present value of the liability to pay the concession fees should be used to calculate allowable deductions. The Commissioner applied for leave to amend the grounds of appeal to raise this point... Leave to amend was refused. Present value discounting of outgoings, payable in the future, is currently under consideration, together with other methods for assessment and deduction, spread over the life of certain financial arrangements (her Honour thereby referring to the Tax Laws Amendment (Taxation of Financial Arrangements) Bill 2006, exposure draft, December 2005) . However, the accounting basis used to date in Australian tax law for the purposes of assessment and deductions has been historical cost accounting, rather than economic equivalents.' Citation was made by her Honour from both Burrill and Myer Emporium. 68 It is appropriate to add for completeness that the following dictum of R D Nicholson J in Integrated Insurance Planning Pty Ltd v Commissioner of Taxation (2004) ATC 4054 at [128] was said by the Commissioner to be to 'like effect': 'An "asset" for the purposes of capital gains is defined in the relevant Act to mean "any form of property and includes... a chose in action... (and) any other right" (s 160A(a)). The rights which the applicants acquired as a consequence of the deeds were a chose in action and/or a right and hence an asset. The position referred to in TR 2001/9 and CGT Determination CGT 3 related only to a simple debt in which the taxpayer had no contractual right to a waiver upon achievement of the relevant contingent (sic) . The present position is therefore different because the taxpayer's rights gave them a CGT asset (s 105-5(1)). They arose as the consequence of a CGT event D1.' I have difficulty in perceiving a viable basis for the Commissioner's invocation of Integrated Insurance in relation to circumstances such as here involved. The Commissioner's postulation of a so-called 'right to share in Westpac dividends' would impermissibly elevate a situation of 'a supposed economic equivalence to the status of a contractual right capable of comprising consideration', as I have already pointed out in my citation of dicta in Citylink Melbourne .
Case: Executor Trustee &amp; Agency Co of South Australia Ltd v Federal Commissioner of Taxation [1932] HCA 25 ; (1932) 48 CLR 26
Outcome: cited
It was further pointed out by Lend Lease that the operation of s 160ZA(4) was consistent with the principle as well as the policy of the general fiscal law that a taxpayer should not be taxed twice in respect of the same profit or gain. That traditional precept was acknowledged in the Income Tax Assessment Amendment (Capital Gains) Bill 1986 at page 55, in relation to the then foreshadowed enactment of s 160ZA(4), in the following terms: 'Broadly stated, where an amount of a capital gain that has accrued to a taxpayer in respect of the disposal of an asset and an amount included in respect of the disposal by virtue of the operation of another provision of the Principal Act (e.g. section 25) relate to the same profit or gain, sub-section 160ZA(4) operates to provide for the reduction of the capital gain. The capital gain is to be reduced by so much of the difference between the "notional" and "actual" amounts (referred to in paragraphs (4)(b) and (c)) as does not exceed the amount of the capital gain. The "actual amount" is the amount that has been or will be included in the assessable income of the taxpayer otherwise than under Part IIIA in respect of any year of income as a result of the disposal of the asset. The "notional amount" is the amount that would have been so included in the assessable income if the consideration received in respect of the disposal had been reduced by an amount equal to the capital gain. Sub-section 160ZA(4) will apply, for example, to a taxpayer who disposes of land and building where the profit on disposal is included under section 25 of the Principal Act. If the consideration in respect of the disposal were reduced by the amount of the capital gain (as required by paragraph (4)(c)), generally the amount that would be included in assessable income of the taxpayer under section 25 would also be reduced by the amount of the capital gain. Accordingly, the "notional amount" would be less than the "actual amount" by the amount of the capital gain, resulting in the capital gain being reduced to nil. Therefore, the same amount of profit is not taxed more than once.' That policy of the general fiscal law was said by Lend Lease to reflect the principle of interpretation adverse to any implication of double taxation, as enunciated by Dixon J (as he then was) in Executor Trustee &amp; Agency Co of South Australia Ltd v Federal Commissioner of Taxation [1932] HCA 25 ; (1932) 48 CLR 26 at 44, as follows: 'No interpretation of a taxing Act should be adopted which results in the imposition of double taxation unless the intention to do so is clear beyond any doubt.'
Case: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297
Outcome: cited
Lend Lease submitted accordingly that the imposition of what it portrayed as the attempted 'double taxation... of an asset' on the part of the Commissioner, implicitly by reference to Lend Lease's derivation of dividend income irrespective of its rebateable character, would be an 'incongruous result', and 'capricious' or 'irrational', and further that where an interpretation of legislation is reasonably open which does not lead to any such result, and accords moreover with the evident purpose of the legislation, that interpretation should be preferred by the Court. Lend Lease cited in that regard Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 320, where in the joint judgment of Mason and Wilson JJ, the following appears: 'Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.'
Case: State Government Insurance Office (Qld) v Crittenden [1966] HCA 56 ; (1966) 117 CLR 412 
Outcome: cited
I have earlier referred to the Commissioner's submissions under the heading 'Issues arising on the appeal', but as I have sought to emphasise, only in outline, given the extent that the Commissioner's case in the course of presentation of submissions was reframed purportedly in reply. An emphasis of the Commissioner's case was that the s 160ZD(1) notion of 'the consideration in respect of a disposal of an asset' , by reason of the inclusion of those words 'in respect of' , draws 'the widest possible connection between the terms of the disposal and the receipt of money or property'. Attention was drawn by the Commissioner in that regard to State Government Insurance Office (Qld) v Crittenden [1966] HCA 56 ; (1966) 117 CLR 412 at 416, where Taylor J referred to the expression 'in respect of' appearing in legislation, though being 'difficult of definition' , as having nevertheless and by virtue of longstanding judicial precedent 'the widest possible meaning of any expression intended to convey some connexion or relation between the two subject matters to which the words refer' . The legislative context there addressed in Crittenden was that of personal injury insurance. More recently in Moneywood Pty Limited v Salamon Nominees Pty Limited [2001] HCA 2 ; (2001) 202 CLR 351 at 380, Gummow J adopted that earlier dictum in Crittenden , the context in Moneywood also being other than that of revenue law. Moreover at 398 in Moneywood , Kirby J observed that '[t] he width of the words "in respect of" has been the subject of many juridical observations. There is no reason in the present context to cut down that width.' The Commissioner's submissions thereafter focused with emphasis upon dicta of the majority judgment of Gummow, Kirby and Hayne JJ in Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3 ; (2005) 221 CLR 496, which involved a consideration of the meaning of 'dutiable value' in relation to ' dutiable property that is subject to a dutiable transaction' appearing in the stamp duty legislation of the State of New South Wales. Though the context in Dick Smith Electronics was that of revenue law, the issue there arose in a stamp duty and not an income tax context, involving the extent of stamp duty exigible upon agreements for the sale or transfer of shares the subject of issued capital in a company. The present circumstances relate of course to income tax assessable upon the monetary value of shares the subject of an agreement for sale or transfer of property, being of course shares in Westpac.
Case: Moneywood Pty Limited v Salamon Nominees Pty Limited [2001] HCA 2 ; (2001) 202 CLR 351 
Outcome: referred to
I have earlier referred to the Commissioner's submissions under the heading 'Issues arising on the appeal', but as I have sought to emphasise, only in outline, given the extent that the Commissioner's case in the course of presentation of submissions was reframed purportedly in reply. An emphasis of the Commissioner's case was that the s 160ZD(1) notion of 'the consideration in respect of a disposal of an asset' , by reason of the inclusion of those words 'in respect of' , draws 'the widest possible connection between the terms of the disposal and the receipt of money or property'. Attention was drawn by the Commissioner in that regard to State Government Insurance Office (Qld) v Crittenden [1966] HCA 56 ; (1966) 117 CLR 412 at 416, where Taylor J referred to the expression 'in respect of' appearing in legislation, though being 'difficult of definition' , as having nevertheless and by virtue of longstanding judicial precedent 'the widest possible meaning of any expression intended to convey some connexion or relation between the two subject matters to which the words refer' . The legislative context there addressed in Crittenden was that of personal injury insurance. More recently in Moneywood Pty Limited v Salamon Nominees Pty Limited [2001] HCA 2 ; (2001) 202 CLR 351 at 380, Gummow J adopted that earlier dictum in Crittenden , the context in Moneywood also being other than that of revenue law. Moreover at 398 in Moneywood , Kirby J observed that '[t] he width of the words "in respect of" has been the subject of many juridical observations. There is no reason in the present context to cut down that width.' The Commissioner's submissions thereafter focused with emphasis upon dicta of the majority judgment of Gummow, Kirby and Hayne JJ in Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3 ; (2005) 221 CLR 496, which involved a consideration of the meaning of 'dutiable value' in relation to ' dutiable property that is subject to a dutiable transaction' appearing in the stamp duty legislation of the State of New South Wales. Though the context in Dick Smith Electronics was that of revenue law, the issue there arose in a stamp duty and not an income tax context, involving the extent of stamp duty exigible upon agreements for the sale or transfer of shares the subject of issued capital in a company. The present circumstances relate of course to income tax assessable upon the monetary value of shares the subject of an agreement for sale or transfer of property, being of course shares in Westpac.
Case: Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143
Outcome: cited
After referring to the well known dictum of Dixon J (as he then was) in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 152 as to the notion of the term consideration, being: '... the word "consideration" should receive the wider meaning or operation that belongs to it in conveyancing rather than the more precise meaning of the law of simple contracts... the consideration is rather the money or value passing which moves the conveyance or transfer. ' and also to what was said by Lord Wilberforce in another stamp duty context in Shop and Store Developments Ltd v Commissioner of Inland Revenue [1967] 1 AC 472 at 503 as to the term 'consideration', being: 'In the first place, the phrase "consideration for the transfer or conveyance" seems to me to refer clearly and naturally to that which passed to the transferor company "for" the transferred properties....' the reasons of the majority judgment in Dick Smith Electronics , under the heading 'The error of the Supreme Court' , continued at 519-520 as follows: 'The result of this analysis is that the primary judge and the majority of the Court of Appeal erred in the approach that they respectively took to the application of the Act to the uncontested facts. Approached correctly, the case may be summed up as follows. The promises which the parties made and recorded in the Agreement can be sufficiently described as being: (1) the Vendors' promise to transfer the Shares to the Purchaser; (2) the Vendors' promise to procure the Company to declare as large a dividend as it could (up to a maximum of $27 million); (3) the Purchaser's promise to pay the Vendors $114,139,649 minus the Dividend Amount; and (4) the Purchaser's promise to "fund" the Company's payment of the dividend. The consideration for each of those promises is to be found in the promises made by the opposite party. However, what for the purposes of s 21(1) of the [Duties] Act moved the transfers by the Vendors was performance of all of the various stipulations in the Agreement, not merely the promises which the Purchaser made. To put the same point in other words: why identify the consideration "for" the transfers as only what the Purchaser gives up? The Vendors transferred the Shares in return for receiving some $114 million, of which part was received from the Company because the parties had agreed that this should be so.'
Case: Shop and Store Developments Ltd v Commissioner of Inland Revenue [1967] 1 AC 472
Outcome: cited
After referring to the well known dictum of Dixon J (as he then was) in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 152 as to the notion of the term consideration, being: '... the word "consideration" should receive the wider meaning or operation that belongs to it in conveyancing rather than the more precise meaning of the law of simple contracts... the consideration is rather the money or value passing which moves the conveyance or transfer. ' and also to what was said by Lord Wilberforce in another stamp duty context in Shop and Store Developments Ltd v Commissioner of Inland Revenue [1967] 1 AC 472 at 503 as to the term 'consideration', being: 'In the first place, the phrase "consideration for the transfer or conveyance" seems to me to refer clearly and naturally to that which passed to the transferor company "for" the transferred properties....' the reasons of the majority judgment in Dick Smith Electronics , under the heading 'The error of the Supreme Court' , continued at 519-520 as follows: 'The result of this analysis is that the primary judge and the majority of the Court of Appeal erred in the approach that they respectively took to the application of the Act to the uncontested facts. Approached correctly, the case may be summed up as follows. The promises which the parties made and recorded in the Agreement can be sufficiently described as being: (1) the Vendors' promise to transfer the Shares to the Purchaser; (2) the Vendors' promise to procure the Company to declare as large a dividend as it could (up to a maximum of $27 million); (3) the Purchaser's promise to pay the Vendors $114,139,649 minus the Dividend Amount; and (4) the Purchaser's promise to "fund" the Company's payment of the dividend. The consideration for each of those promises is to be found in the promises made by the opposite party. However, what for the purposes of s 21(1) of the [Duties] Act moved the transfers by the Vendors was performance of all of the various stipulations in the Agreement, not merely the promises which the Purchaser made. To put the same point in other words: why identify the consideration "for" the transfers as only what the Purchaser gives up? The Vendors transferred the Shares in return for receiving some $114 million, of which part was received from the Company because the parties had agreed that this should be so.'
Case: Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428
Outcome: cited
It was pointed out further by the Commissioner that '... even the minority judges in Dick Smith Electronics (Gleeson CJ and Callinan J) were prepared to accept that the promise to fund the dividend, as opposed to the performance of that promise, was a 'non-monetary consideration for the agreement to transfer on sale'. In that regard however Gleeson CJ and Callinan J observed (at 510) that while they were '... prepared to accept that the obligation accepted by [Dick Smith Electronics]', being the obligation of the purchaser to lend to that target company 'an amount sufficient to put it in funds to pay the dividend ', they decided nevertheless that '[w]e cannot accept that it is monetary consideration for the transfer on sale'. Be that as it may, the findings made by the High Court majority in Dick Smith Electronics were described by the Commissioner to be consistent with the approach taken in Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428, where it was held that the payment of amounts equal to 90 per cent of all rents, as and when received by lessees of a city mixed development, constituted in reality outgoings of a capital nature, being part of the capital costs for the acquisition of an asset comprising that development, and were therefore not deductible. In other words the terminology adopted by contracting parties in their contract does not necessarily determine the character of a transaction the subject of that contract at least for revenue purposes, irrespective of the nature and extent of the divergence of views between the majority and minority of the High Court in Dick Smith Electronics . So much may be readily accepted but the issue remains as to whether the Commissioner thereby gains the assistance it seeks from Dick Smith Electronics .
Case: Integrated Insurance Planning Pty Ltd v Commissioner of Taxation (2004) 205 ATC 4054
Outcome: cited
It is appropriate to add for completeness that the following dictum of R D Nicholson J in Integrated Insurance Planning Pty Ltd v Commissioner of Taxation (2004) ATC 4054 at [128] was said by the Commissioner to be to 'like effect': 'An "asset" for the purposes of capital gains is defined in the relevant Act to mean "any form of property and includes... a chose in action... (and) any other right" (s 160A(a)). The rights which the applicants acquired as a consequence of the deeds were a chose in action and/or a right and hence an asset. The position referred to in TR 2001/9 and CGT Determination CGT 3 related only to a simple debt in which the taxpayer had no contractual right to a waiver upon achievement of the relevant contingent (sic) . The present position is therefore different because the taxpayer's rights gave them a CGT asset (s 105-5(1)). They arose as the consequence of a CGT event D1.' I have difficulty in perceiving a viable basis for the Commissioner's invocation of Integrated Insurance in relation to circumstances such as here involved. The Commissioner's postulation of a so-called 'right to share in Westpac dividends' would impermissibly elevate a situation of 'a supposed economic equivalence to the status of a contractual right capable of comprising consideration', as I have already pointed out in my citation of dicta in Citylink Melbourne .
Case: Commissioner of Taxation v Dulux Holdings Pty Ltd [2001] FCA 1344 ; (2001) 113 FCR 436 
Outcome: referred to
Upon the topic of the right of a taxpayer as to the benefit of offsetting of capital losses, the Commissioner submitted that it was incorrect of Lend Lease to characterise that right as one which Lend Lease agreed to relinquish on completion of the FPA, and further that what was constituted by the FPA in favour of Lend Lease was rather a right which was partly discharged each time a dividend was received, the Commissioner purportedly invoking in that regard the operation of s 160M(3)(b) of the Tax Act, which reads as follows: '160M(3) ... a change shall be taken to have occurred in the ownership of an asset by: ... (b) in the case of an asset being a debt, a chose in action or any other right, or an interest or right in or over property the cancellation, release, discharge, satisfaction, surrender, forfeiture, expiry or abandonment, at law or in equity, of the asset.' It was therefore submitted by the Commissioner that no capital loss arose from the partial discharge of the relevant rights, since the cost base of the part of each of the rights disposed of on each occasion was offset by the amount of the dividend received. All that was said to be consistent with the decision in Commissioner of Taxation v Dulux Holdings Pty Ltd [2001] FCA 1344 ; (2001) 113 FCR 436, where a Full Federal Court (Beaumont, Lindgren and Kenny JJ) unanimously held that rights under an assumption agreement were discharged as each payment was made, leaving thereby no scope for s 160U(3) to operate. Contrary therefore to Lend Lease's submissions earlier recorded, so the Commissioner contended, 'the right was not disposed of for no consideration', since each dividend was received in respect of the disposal of part of the right and was therefore disposed of for consideration. As I have foreshadowed, there is evident difficulty with the Commissioner's notion as to payment by a company of a dividend involving the disposition of a right, within the scope of operation of Part IIIA of the Tax Act, attributable to the declaration and payment of that dividend to the company's shareholders. 77 Upon the basis in any event that the disposal did not occur when the FPA was entered into, but as and when dividends were paid in subsequent fiscal years, the Commissioner drew attention to s 160U(4), the text of which I have earlier reproduced. I am unable to accept, conceptually or otherwise, that payment of dividends by a company, in circumstances for instance as here prevailing in the case of County Natwest, constituted a situation whereby an '... asset [which] was... disposed of otherwise than under a contract' within that subsection, that being a provision designed to address the subject of 'Time Of Disposal And Acquisition' , as the heading to s 160U duly indicates.