Bargwanna v Commissioner of Taxation (No 3)

[2011] FCAFC 18

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Graham Bargwanna & Melinda Bargwanna as Trustee of the Kalos Metron Charitable Trust
vCommissioner of Taxation

Court:

Judges: Dowsett J
Kenny J
Middleton J

Subject References:
PRACTICE AND PROCEDURE
appeal allowed by Full Court
orders to remit matter to the Administrative Appeals Tribunal for rehearing
whether rehearing required
appeal dismissed

Legislative References:
Administrative Appeals Tribunal Act 1975 (Cth) - The Act
Federal Court of Australia Act 1976 (Cth) - The Act
Income Tax Assessment Act 1997 (Cth) - The Act
Taxation Administration Act 1953 (Cth) - The Act
Federal Court Rules -

Case References:
Bargwanna (Trustee) v Commissioner of Taxation - [2010] FCAFC 126
Walker v Secretary, Department of Social Security (No. 2) - (1997) 75 FCR 493

Judgment date: 17 February 2011

Delivered in Brisbane (via video link to Sydney)
Heard in Sydney (via video link to Melbourne and Brisbane)

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THE COURT ORDERS THAT:

1. The orders pronounced on 8 October 2010 be vacated.

2. The appeal be allowed.

3. Order 2 of the orders made by the trial judge on 12 June 2009 be set aside; and, in lieu thereof, order that:

(a)

the decision of the Administrative Appeals Tribunal ('the Tribunal') of 7 April 2008 be set aside;

(b)

the proceedings be remitted to the Tribunal to determine, in light of all the facts as found in the Tribunal's decision of 7 April 2008, and in light of any further facts which the Tribunal deems necessary to find based upon the evidence already admitted, whether or not the Fund, as a whole, was being applied to the relevant charitable purpose - in accordance with the reasons of the Full Court.

4. The appellants pay the respondent's costs of the motion, notice of which was dated 13 October 2010.

5. Save for [4] above, the respondent otherwise pay the appellants' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using Federal Law Search on the Court's website.