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Published online by Cambridge University Press: 24 January 2025
1 Casuarina Pty Ltd v. F.C. of T. (1971) 45 A.L.J.R. 213.
2 Ellers Motor Sales Pty Ltd v. F.C. of T. (1972) 72 A.T.C. 4033 and earlier in (1969) 44 A.L.J.R. 1 (per Menzies J.).
3 Newton v. F.C. of T. [1958] A.C. 450. See also Mangin v. l.R.C. (N.Z.) [1971] 2 W.L.R. 39 which turned on the fact that the whole scheme smacked of “business unreality”.
4 Newton v. F.C. of T. [1958] A.C. 450.
5 See pages 39 and 40. See generally paper by P. J. Lanigan “Technical Problems Relating to the Objectives and Consequences of Taxation” published by the Taxation Institute of Australia in 1969 at pages 15 and 16 where the comment is made “the significant point to note is that the judgment [in Newton's case] does not appear to give the support of the Privy Council to the grounds on which the High Court [in Keighery's case] declined to apply section 260 in that case” and Professor Parsons' agreement with this view at page 19 in his commentary.
6 71 A.T.C. 4202.
7 Franklin's Self Serve Pty Ltd v. F.C. of T. (1970) 44 A.L.J.R. 346 (change of shareholding arrangements to retain use of tax losses in terms of changed legislation). Peale v. F.C. of T. (1964) 111 C.L.R. 443 and (1966) 116 C.L.R. 38 (proceeding from a medical partnership to an interposed company providing medical services). Jacques v. F.C. of T. (1924) 34 C.L.R. 328 (re arrangements to take advantage of deductions from calls on shares).
8 (1957) 100 C.L.R. 66.
9 The Control of Tax Avoidance by Professor R. W. Parsons in Income Tax (Series 2) 1965 Lecture XII published by the University of Sydney.
10 Compare the wider sweep of the South African section 103 where the test is expressly made “normality”, discussed in Silke on South African Income Tax, 6th Edition; (1969) pages 902 et seq. There is little room for the Keighery “choice” test except as an indicia of normality capable of rebuttal where the manner of taking the offered choice is clearly abnormal such as in Keighery itself.
11 Franklin’s Self Serve Pty Ltd v. F.C. of T. (1970) 44 A.L.J.R. 346.
12 Peate v. F.C. of T. (1964) 111 C.L.R. 443.
13 Millard v. F.C. of T. (1962) 108 C.L.R. 336.
14 Bell v. F.C. of T. (1953) 87 C.L.R. 548; War Assets Pty Ltd v. F.C. of T. (1954) 91 C.L.R. 53.
15 I.R.C. (N.Z.) v. Europa Oil (N.Z.) Ltd [1971] W.L.R. 55.
16 Esquire Nominees Ltd v. F.C. of T. (1972) 72 A.T.C. 4076.
17 Mangin v. I.R.C. (N.Z.) [1971] 2 W.L.R. 39.
18 Under the South African section 103 the authorities are entitled not only to determine the liability to tax “as if the transaction had not been carried out” but may also do so “in such manner as in the circumstances of the case he deems appropriate for the prevention or diminution of such avoidance, postponement or reduction”.
19 Section 103A(4A) to (4E) of the Income Tax Assessment Act.
20 Section 46A of the Income Tax Assessment Act.
21 See section 80 and following sections of the Income Tax Assessment Act.
22 See, for example, Duggan & Anor v. F.C. of T. (1973) 47 A.L.J.R. 44.
* Solicitor and Lecturer (Part-time), University of Sydney.