Commissioner applies for special leave in MBI Properties

The Federal Court website discloses that the Commissioner has lodged an application to the High Court for special leave to appeal against the decision of the Full Federal Court in in MBI Properties v Commissioner of Taxation [2013] FCAFC 112 where the Full Court allowed the taxpayer’s appeal against the decision of the Federal Court in MBI Properties Pty Ltd v Commissioner of Taxation [2013] FCA 56.

The Full Court agreed with the taxpayer that it did not have an increasing adjustment pursuant to Division 135 of the GST Act where it acquired, as a going concern, residential premises which were leased. This was because the supply was made on the grant of the lease and that while the lease (being the subject of the supply) may have continued, the supply made on the grant did not. The Full Court also agreed that on its proper statutory construction, s 135-5(1)(b) only applied to supplies made by the acquirer of the enterprise.

My analysis of the decision of the Full Court can be accessed here.

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