Federal Commissioner of Taxation v. Australian National Hotels Limited

Judges:
Mason CJ
Deane J
Toohey J

Court:
High Court

Judgment date: Decision handed down 17 February 1989.

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Mason C.J. [Following argument his Honour delivered the Court's decision]

The applicant seeks to argue two points in the proposed appeal: first, that the premiums for insurance against capital loss of any kind including fire insurance premiums are of a capital nature and not deductible under sec. 51 of the Income Tax Assessment Act; secondly, that if some such premiums are deductible they constitute an anomaly which should not be extended to cover the payments made in the present case.

The first point is both novel and fundamental. However, it was not raised in the Federal Court and this Court should not embark upon an examination of it without having the advantage of a comprehensive consideration of it by an intermediate Court of Appeal.

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ATC 4158

We are left then with the second point. It would be inappropriate for us to grant special leave to appeal to deal with this question in isolation now that the Commissioner has signalled his intention to challenge the traditional view according to which premiums for insurance against capital loss in a variety of circumstances have been treated as deductible under sec. 51. It would be an artificial exercise to consider and determine the second point so long as the first point remains in abeyance.

For these reasons the application for special leave to appeal is refused.

[Discussion on costs ensued.]