Decision impact statement

Tagget v Commissioner of Taxation

Court Citation(s):
[2010] FCAFC 109
2010 ATC 20-210
(2010) 188 FCR 128
(2010) 80 ATR 399

Venue: Federal Court of Australia
Venue Reference No: NSD 165 of 2010
Judge Name: Dowsett, Jessup and Gordon JJ
Judgment date: 8 September 2010
Appeals on foot:
No

Impacted Advice

Relevant Rulings/Determinations:

• None

Subject References:
Taxation
Income tax
whether land transferred to the taxpayer constituted ordinary income
whether the land should be valued as at the date the taxpayer acquired a conditional right to the land or as at the date of the actual transfer.

Decision Outcome:

Favourable

Précis

The issue in this case is whether or not the taxpayer should be assessed on the value of land transferred to him at the time of transfer, or the value of the land at an earlier time when the taxpayer acquired a conditional right to have the land transferred to him.

Brief summary of facts

In November 1998 the taxpayer entered into a deed with Hillpalm Pty Ltd (Hillpalm).

Clause 2 of that deed provided that Hillpalm may appoint the taxpayer to perform certain services relating to the development of Stage 5 of the Tanglewood development (Stage 5). This appointment was, by that clause, required to be formalised by entering into an agreement.

The deed required Hillpalm to subdivide and transfer proposed lot 157 to the taxpayer for nominal consideration of $10 (clause 3.1), upon Hillpalm realising $3.2 million in gross sale proceeds from the Stage 5 development (clause 3.2). Or should that, for any reason beyond the control of Hillpalm, not occur, the taxpayer was to be paid the value of the land (to be determined by a valuer appointed by the President of the Institute of Valuers) (clause 3.3).

This deed was executed in November 1998. The taxpayer did perform services for Hillpalm, but not in the sense described by clause 2.

A dispute arose between Hillpalm and the applicant. Ultimately, the taxpayer commenced litigation in District Court of Lismore seeking $750,000 for alleged breaches of the deed. That dispute was resolved by deed of release in March 2004.

Pursuant to that deed of release, the property was transferred to the taxpayer by transfer dated 20 September 2005 (which was registered 18 October 2005).

Issues decided by the court

•

In relation to the point of derivation, the Court found that the parcel of land transferred to the taxpayer was ordinary income derived in the year ended 30 June 2006, because, as the taxpayer accounted on a cash receipts basis, the income was derived when received.

•

In relation to the amount to be assessment to the taxpayer, the land was said to be "consideration" within the meaning of s21(1) of the Income Tax Assessment Act 1936, and to have been "paid or given" in the year ended 30 June 2006. It followed, therefore, that the money value of the land was $1.2 million (the value of the land itself when transferred), not $450,000, being the value of the land at the time the taxpayer entered into the deed.

•

In deciding the above, the Court was of the view that the taxpayer's case was not analogous to Abbott v Philbin.

Tax Office view of Decision

This case was decided on its facts, and it is not considered that the decision will have any broader implications.

Administrative Treatment

Implications on current Public Rulings & Determinations

None

Implications on Law Administration Practice Statements

None

Legislative References:
Income Tax Assessment Act 1936
21
21A

Income Tax Assessment Act 1997
6-5

Income Tax Act 1952 (UK)

Case References:
Abbott v Philbin
[1961] AC 352
[1960] 2 All ER 763

Commissioner of Taxes (SA) v Executor Trustee and Agency Co of South Australia Ltd
[1938] HCA 69
(1938) 63 CLR 108

Barratt v Commissioner of Taxation
[1992] FCA 271
(1992) 36 FCR 222
23 ATR 339
92 ATC 4275

Donaldson v Federal Commissioner of Taxation
(1974) 3 ALR 516
4 ATR 530
74 ATC 4192

Federal Commissioner of Taxation v Dunn
(1989) 85 ALR 244
20 ATR 356
89 ATC 4141

Federal Commissioner of Taxation v McArdle
(1988) 19 ATR 1901
89 ATC 4051