I have added the first instalment of my analysis of GST cases handed down in 2011.  The analysis can also be accessed from the Cases Menu.

The cases analysed to date are:

Federal Court

• International All Sports v Commissioner of Taxation [2011] 824 (gambling supplies, refunds)
• Reglon Pty Limited v Commissioner of Taxation [2011] FCA 805 (damages, taxable supply)

AAT

• Badaoui and Konig and Commissioner of Taxation [2011] AATA 672 (creditable acquisitions)
• Educational Pty Ltd and Commissioner of Taxation [2011] AATA 445 (enterprise)
• A Taxpayer and Commissioner of Taxation [2011] AATA 160 (division 129 adjustments, apportionment methodology)

As noted on this site earlier today, on 2 November 2011 the ATO published draft GSTR 2011/D4 dealing with financial assistance payments.

On my first reading of the document, I consider the following issues to be noteworthy:

• the draft ruling helpfully seeks to deal with matters not directly covered by GSTR 2000/11, such as sponsorship and tripartite agreements;
• the draft ruling appears to take a narrower view on what constitutes a taxable supply for a financial assistance payment than in GSTR 2000/11; and
• the draft ruling sets out detailed transitional rules which appear to envisage the potential for refund claims for those taxpayers who have relied on the broader scope of taxable supply in GSTR 2000/11 (both in respect of over-paid GST and under-claimed input tax credits).

A page outlining my comments on the draft ruling can be accessed here.

On 27 October 2011 the taxpayer filed an appeal to the Full Federal Court from the decision of Justice Gilmour in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2011] FCA 1146 to dismiss an application for judicial review of the decision of the Tribunal in LVR (WA) Pty Ltd and Anor and Commissioner of Taxation [2010] AATA 570 to dismiss the application for failure to comply with directions.

The issues in substantive dispute concerned contentions by the Commissioner that the taxpayer carried on the enterprise of property subdivision and sale, was required to be registered as it exceeded the registration threshold, and penalties.

The Tribunal found that the applicant had failed “within a reasonable time” to comply with the directions. Dismissal of proceedings without hearing is a drastic step and the Tribunal noted that the effect of such an order was to make the debt to the Commissioner final and recoverable.  However, the Tribunal was of the view that every requirement of procedural fairness had been followed.

As reported on this site, on Friday the Full Federal Court heard the Commissioner’s appeal in Multiflex.  The Court has reserved its decision, although I would expect a decision very shortly.

The Full Federal Court will be hearing the Commissioner’s appeal in the Multiflex case at 9.30am today in Court 22A of the Federal Court in Melbourne.  On the bench is Justices Stone, Edmonds and Logan.

Each of these judges has had considerable experience with GST.  Stone and Edmonds JJ sat on the Full Court appeals in Reliance Carpet and Qantas.  Logan J sat on PM Developments.

Given the expedited manner in which the hearing was scheduled (less than a month from the date of judgment at first instance), I would expect the Court to pronounce judgment quickly.

I have added a Menu item to this site providing access to those New Zealand GST cases which can be accessed on-line.  I have not sought to include every case (such as penalty cases).

The next project for the site will be to collate UK VAT cases. This is a significant task and I would expect the project to be completed next month.

The interaction between GST and court judgments and settlements have caused legal practitioners headaches for a number of years.  The ruling issued by the Commissioner (GSTR 2001/4) has provided a useful and practical insight into how the Commissioner seeks the role of GST in this environment.

It is now about ten years since the ruling was issued and it is timely to consider how the ruing has stood up to judicial consideration.

The attached paper seeks to outline the fundamental principles in the ruling and considers a number of cases dealing with GST and damages, judgments and costs.

I am in the process of incorporating a link to the current ATO GST Rulings and GST Determinations into this site.  These documents can be accessed by the drop-down menu.  Simply hold the curser over the menu item and a drop down list will appear. This function has been incorporated into the GST cases section as well.

At the time of this post the current ATO rulings from 2004 have been added. This project should be completed in the next few days.

The decision two days ago of the Full Federal Court in Mount Pritchard & District Community Club Limited v Commissioner of Taxation [2011] FCAFC 129 confirms that the Commissioner can disregard a private ruling if there has been a “material change” to the arrangement which was the subject of the ruling.  The decision shows the importance of getting the arrangement right initially and also the dangers to the client if circumstances change down the track.  While the decision related to the private ruling regime for income tax, the lessons are equally applicable to private rulings sought in respect of GST.

The decision has rather an unfortunate history, but the essential facts are that in February 2004 the taxpayer obtained a private ruling that it would be exempt from income tax for the 2003 to 2010 income years.  In 2007 the Commissioner contended that due to a material change in the arrangement (as a result of the amalgamation of the club with another), the Commissioner was not bound by the ruling and proceeded to issue income tax assessments for the 2006 income year.

The taxpayer objected to that assessment but issued these proceedings under s39B of the Judiciary Act seeking to effectively quash the assessments on the basis that the ruling regime placed a duty on the Commissioner not to raise assessments in a manner contrary to the ruling.  The Full Federal Court found that such a duty did not exist.  Further, due to the “material change” in the arrangement, the Commissioner was free to issue the assessments and the taxpayer had recourse to review of the assessment under Part IVC of the Taxation Administration Act.

The decision is yet another example of the difficulties involved in attacking assessments through means other than Part IVC.