Greenwoods and Freehills Weekly Tax Highlights - Week Ended 17.4.09

ATO Documents

Released 17.04.09

Taxpayer alert
TA 2009/8: Exploitation of 1999 superannuation transitional provisions to obtain taxation and regulatory benefits

Suntory (Aust) Pty Ltd v FCT [2009] FCA 348, 15 April 2009: The Federal Court has rejected a taxpayer's claim that the Commissioner's collection of the increased alcopops tax was unlawful. The taxpayer argued that it was not liable for the increased excise duty on and from 19 March 2009, being the day after the legislative scheme was rejected by the Senate. The Commissioner claimed that the applicable legislative scheme required the proceeding brought by the taxpayer to be stayed until after midnight on 13 May 2009. The Court agreed with the Commissioner's position and concluded that the relevant legislation  applied "...to preclude the commencement of the present proceeding". In particular the Federal Court found there to be a valid Excise Tariff alteration once a motion has been moved in the House of Representatives. The Senate's refusal to pass the Bill did not affect that status in accordance with s.4(3) of the Excise Act. It found that the proceeding should be stayed until after midnight on 13 May 2009 and listed thereafter for further mention on a date to be agreed between the parties. This may have been influenced by the fact that Parliament resumes on 13 May 2009, and the Government has announced that it will re-introduce its alcopops legislation on that day (including legislation to validate the revenue collected between 27 April 2008 and 13 May 2009).