Today an expanded bench of the High Court (5 judges) heard the Commissioner’s application for special leave to appeal the decision of the Full Federal Court in Commissioner of Taxation v Unit Trend Services Pt Ltd [2012] FCAFC 112. The High Court reserved its decision – the transcript has just appeared on Austlii and can be found here.

The application deals with the proper construction of the anti avoidance provisions in Division 165 of the GST Act and particularly the “choice provisions” providing that the provisions do not apply if the GST benefit arises because of a choice, agreement, election etc arising under the GST Act. Central to the issue is the meaning to be given to the word “attributable”. As noted in the Commissioner’s submissions, the construction of this term may also impact on the operation of the anti-avoidance provisions in Part IVA of the Income Tax Act.

Because the application was referred to a full bench, the submissions filed by the parties are available on the High Court website. They can be accessed below:

• Written submissions of the Commissioner (applicant)
• Written submissions of the Respondent (taxpayer)
• Written submissions in reply

My analysis of the Full Federal Court decision in Unit Trend can be found here.

The transcript of the initial application for special leave heard by the High Court in December 2012  can be found here.