Tribunal hands down decisions finalising Wynnum Holdings and “son of holdback” cases

On Friday the Tribunal handed down its decisions in Wynnum Holdings No 1 Pty Ltd and Commissioner of Taxation [2012] AATA 616 and AP Group Limited and Commissioner of Taxation [2012] AATA 617

Wynnum Holdings

On 5 May 2011 the Tribunal handed down an interim decision ([2011] AATA 296) dealing with two preliminary matters, being whether the Commissioner’s claim was made out of time (“the timing issue”) and whether the Commissioner was prevented from recovering because of a ruling previously made in the Applicant’s favour (“the ruling issue”.  The Tribunal found against the Applicant on both these matters and found it necessary to decide the remaining issues of whether the Applicant was carrying on an enterprise at the time it purchased a property in 2003, or whether it was acting as bare trustee of joint venture parties (“the enterprise issue” and whether the property is properly characterised as “commercial residential premises” or “residential premises” (the commercial residential premises issue”).

The Tribunal found in favour of the Commissioner on both the remaining issues.  My analysis of the decision can be accessed here.

AP Group Limited

Also, the Tribunal handed down its final decision in AP Group Limited and Commissioner of Taxation [2012] AATA 617, finding that the taxpayer’s objection was partially allowed, on the basis that certain incentive payments were not consideration for a supply.  The Tribunal handed down its interim decision in July 2012, [2012] AATA 409 and my post discussing that decision can be accessed here.

The decision confirms that adjustments for three of the incentives were to be made for the May 2007 and March 2008 tax periods (being the sample months for testing), thereby reducing the taxpayer’s net amounts for those tax periods.  In the interim decision, the Tribunal raised the the issue of whether the Commissioner could rely on the discretion in s 105-65 to refuse to pay the refunds and whether the Tribunal has jurisdiction to review such a decision.  The Tribunal did not appear to consider this issue.

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