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McEwan v Office of the Australian Information Commissioner [2023] FCAFC137 – Full Federal Court holds ATO’s disclosure of personal information was permitted
The Full Federal Court has dismissed an appeal against the Federal Court decision reported at [2022] FCA 1488, in which the Court dismissed an application for judicial review of the Australian Information Commissioner’s decision not to proceed with an investigation of the ATO’s disclosure of personal information to a third party in the course of its investigation of the applicant. The applicant’s position had been that the ATO officers (as taxation officers) were prohibited by the relevant legislative framework from disclosing its personal information to any entity other than another taxation officer.
The Full Federal Court agreed with the first instance decision, holding that in light of the relevant authorities and the proper construction of the relevant provision (section 355-50 of Schedule 1 to the TAA 1953), it was clearly permissible for an ATO officer to make disclosures of a taxpayers’ personal information to a third party in the course of performing their duties as a taxation officer. As such, the applicant’s appeal was dismissed.
Makrylos v FCT [2023] FCA 971 – Land acquired by property developer held to be trading stock from date of acquisition
The Federal Court has concluded that land acquired by the taxpayer in his own name was held as trading stock subject to a joint venture agreement as at the date of acquisition (and not 5 years later when the taxpayers’ plans to build his dream home on the land evolved into a 16-lot subdivision) and that its ultimate sale was undertaken in the ordinary course of a property development business conducted by the taxpayer. This was primarily due to the Court’s assessment of the taxpayer’s evidence, which was inconsistent and described as argumentative, selectively evasive, vague and unresponsive. As a result, the Court found that the taxpayer had failed to discharge his burden of proving that the relevant amended assessments were excessive or what they ought to have been, and consequently dismissed his appeal against them.
Edge Developments Pty Ltd v Commissioner of State Taxation (SA) [2023] SASCA 88 – Equitable interest in land made unit trust a land holding entity
The South Australian Court of Appeal has dismissed the taxpayers’ appeal against the decision reported at [2022] SASC 55 (covered in the Birchstone Brief for the week ended 17 June 2022), affirming the first instance decision that a unit trust’s equitable interest in land pursuant to a performance charge was a relevant interest in land sufficient to render it a land holding entity. As such, a redemption of units in the unit trust that led to an increase in the relevant taxpayers’ interests was a dutiable transaction.
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