Case: Prime Wheat Association Ltd v Chief Commissioner of Stamp Duties (1997) 42 NSWLR 505 
Outcome: cited
Lend Lease referred also in the present context to the implications relevantly of Prime Wheat Association Ltd v Chief Commissioner of Stamp Duties (1997) 42 NSWLR 505 where at 511, Gleeson CJ rejected the characterisation of what is commonly described as a 'mortgage back' transaction, put in place pursuant to a share sale agreement whereby ownership of the shares was to pass to the purchasers on completion of that agreement, but payment for the shares was to be made by an initial deposit, and thereafter by instalments over 20 years, and to be secured partly by the grant of a mortgage over those shares in favour of the vendor. Though in the minority in the outcome in the New South Wales Court of Appeal, his Honour observed ( obiter ) at 511 as follows: 'There is no doubt, in the present case, that the transaction in question was one under which the vendor of the shares provided financial accommodation to the purchasers, or that the instrument in question made provision for such financial accommodation. It does not follow, however, the form of financial accommodation agreed between the parties was by way of loan. To describe the transaction as being substantially one which involved a mortgage back to the vendor does not provide an answer to the critical questions in the case, and, as was submitted on behalf of the appellants, carries a risk of resolving the issue by reference to considerations of economic equivalence rather than by reference to an accurate characterisation of the instrument under consideration.' 54 Given that contrary to Lend Lease's foregoing submissions, Lend Lease did derive for Part IIIA purposes the controversial 'additional non-cash consideration' of $144,263,243 propounded by the Commissioner, and did so ' in respect of the disposal of an asset ' within the scope of operation of s 160ZA(4), as to which see paragraphs (a) (c) and (d) thereof, so much was asserted by the Commissioner to have comprised an entitlement in the nature of 'a chose in action' , and therefore an ' asset ' within the Part IIIA definition contained in s 160A, being a chose to retain beneficial ownership of the shares until the completion of the transaction of sale, and therefore to receive any dividend paid by Westpac prior to completion. Lend Lease contended nevertheless that the dividends, being a part or a so-called 'manifestation' of the 'non-cash consideration', were included in the assessable income of Lend Lease 'as a result of the disposal' of the Sale Shares under the FPA having occurred within the purview of par (b) of s 160ZA(4). Lend Lease emphasised in that context that by virtue of par (d) of s 160ZA(4), 'if the notional capital gain does not exceed the included amount or the sum of the included amounts no capital gain is deemed for the purposes of this Part to have accrued to the taxpayer during the year of income in respect of the disposal of the asset' , and further that since the dividends included in the assessable income of Lend Lease totalled $162 million, that figure exceeding the amount of the capital gain assessed by the Commissioner, it followed that by virtue of par (d) of s 160ZA(4), no capital gain could or should be taken to have accrued to Lend Lease by operation of law.