Taxpayer’s submissions in the MBI Properties appeal now available online

The taxpayer’s (respondent) written submissions to the High Court in the Commissioner’s appeal of the Full Federal Court’s decision in Commissioner of Taxation v MBI Properties Pty Ltd [2013] FCAFC 112 are now available on the High Court website. They can be accessed here.

The Commissioner’s submissions were filed in May and my post discussing those submissions can be accessed here.

In my post I observed that the principal issue identified by the Commissioner in his submissions brought into question the decision of the Full Federal Court in South Steyne Hotel Pty Ltd v Commissioner of Taxation [2009] FCAFC 155 and whether the purchaser of a reversionary estate in land leased to a sitting tenant makes a “supply” to the tenant after completion of the purchase.

The taxpayer’s submissions (at [3]) contend that the relevant statutory questions in the appeal are not properly reflected in the “principal issue” as stated by the Commissioner. Also, the taxpayer makes the following contentions (at [8]-[9]):

  • prior to the special leave application, the Commissioner had not at any point contended that MBI made a separate supply to Mirvac in the form of a separate supply of residential premises by way of lease.
  • before the primary judge and the Full Court the Commissioner submitted that South Steyne was correctly decided
  • the appeal is in substance an appeal from the decision of the Full Court in South Steyne

The taxpayer contends that the relevant statutory questions are as follows:

  • did MBI intend to make any “supply” as a consequence of acquiring the reversionary interest in the residential premises?
  • if so, was any such supply intended to be made “through the enterprise” that was the subject of the acquisition by MBI from South Steyne for the purposes of s 135-5?
  • if so, what was the character of any such supply? In particular, was it an input taxed supply of residential premises by way of lease within the meaning of s 40-35?
  • what was the “price” of any such supply for the purpose of applying the formula in s 135-5(2)?

The Commissioner’s reply is due on 20 June 2014.

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