The Federal Court Portal shows that on 28 November 2011 the taxpayers filed appeals against the decisions of the Tribunal (constituted by President Downes and Senior Member O’Loughlin) in MTAA Superannuation Fund (RG Casey Building) Property Pty Ltd and Commissioner of Taxation [2011] AATA 769 and National Jet Systems Pty Ltd and Commissioner of Taxation [2011] AATA 766 which were handed down on 31 October 2011.

The callover for both appeals is scheduled for 7 February 2012 before Justice Gray.

Given that Justice Downes was a member of the Tribunal, the appeal will be heard by the Full Court (s 44(3) of the Administrative Appeals Act).

Both matters concerned a claim for a refund of GST overpaid in respect of agreements which the applicant contended were GST-free pursuant to s 13 of the GST Transition Act.  In each case the Commissioner contended that:

• the agreements were taxable
• the notification lodged by the applicant was not a valid notification for the purposes of s 105-55 of Schedule 1 to the TAA
• if a refund was available, the discretion in s 105-65 of Schedule 1 to the TAA entitled the Commissioner to refuse to pay the refunds

In both decisions the Tribunal found that:

• the notifications lodged by the applicants were valid
• the agreements were not GST-free pursuant to s 13 of the GST Transition Act
• if a refund was available, no refund should be paid because this would give rise to a windfall gain to either the applicant or the recipient of the supply
• for the National Jet matter, the extension of time should not be granted

One would expect that the Commissioner will file a Notice of Contention in both matters contending that the notifications were not valid.  This would be consistent with the approach taken in the appeal by the taxpayer of the decision in Central Equity Limited v Commissioner of Taxation [2011] FCA 908 where Justice Gordon found that a notification lodged in similar form was valid.