Today the High Court unanimously allowed the Commissioner’s appeal from the decision of the Full Federal Court in Commissioner of Taxation v Unit Trend Services Pt Ltd  FCAFC 112. The High Court found that the phrase “not attributable to” in s 165-5(1)(b) of the GST Act is concerned with whether the GST benefit in question is not one to which the taxpayer was entitled by exercise of a statutory choice. Further, reference to the undisputed facts showed that the GST benefit in question was not attributable to the making of a statutory choice by Unit Trend provided for by the GST Act. The GST benefit was therefore negated by the anti-avoidance provisions in Division 165.
An expanded bench of the High Court heard the Commissioner’s application for special leave to appeal. The transcript can be found here.
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.