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An evaluation of the contribution of Justice Hill to the provisions for the taxing of capital gains in Australia

Published on 01 Jun 13 by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE

As in many other areas of law, and in particular taxation law, Mr Justice Hill made a substantive and influential contribution to the jurisprudence associated with the Australian capital gains tax provisions. This included some enlightening interpretations of the substantive provisions in Part IIIA of the Income Tax Assessment Act 1936 and Parts 3-1 and 3-3 of the Income Tax Assessment Act 1997. For example, in Hepples v FCT1 the dissenting view taken by Hill J on the interpretation and application of the so-called “terrible twins” (subsections 160M (6) and 160M (7) ITAA 1936) was subsequently upheld by majorities in the High Court, and was certainly instrumental in bringing about a more expanded definition of asset for capital gains purposes and, ultimately, the replacement of
those particular provisions with CGT events D1 and H2 in the 1997 rewrite.

His judgments also extended to more far reaching issues such as the income/capital divide (FCT v Cooling2), the application of the timing rules for capital gains purposes (Kiwi Brands Pty Ltd v FCT3) and the meaning of “goodwill” (FCT v Krakos Investments Pty Ltd4 ). As in other areas of law, Mr Justice Hill’s judgments in this area were marked by the rigor of his analysis and his capacity to bring to bear his formidable knowledge of other fundamental areas of law, such as property and contract law. In a number of these cases the influence of his judgments on subsequent High Court decisions is also readily discernible.

This paper explores the breadth and the depth of his contribution to jurisprudence in this particular area of revenue law.

Author profiles:

Chris EVANS

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Matthew WALLACE



Geoffrey HART
BA LLb (Qld) LLM (Lon) FTIA, Senior Lecturer Business Law Discipline, Faculty of Economics Sydney University
Current at July 2008
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