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


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:

Matthew Wallace
Matthew is a Senior Lecturer in tax at the University of New South Wales. Current at 22 July 2013
Author Photo - Christopher Evans
Prof Christopher Evans
Chris is Professor of Taxation and former Head of the Australian School of Taxation (Atax) at UNSW Australia. He specialises in comparative taxation, capital and wealth taxation, tax law and administration, tax policy and reform. His PhD from UNSW was a comparative study of the operating costs of taxing capital gains. He also holds a master’s degree in European Political Integration from Leicester University and a Bachelor’s honours degree in Economics from London University, as well as postgraduate educational qualifications from Leeds University. He has researched and published extensively in taxation, and is a co-author of Australian Taxation Law and Cooper & Evans on CGT. He is General Editor of Australian Tax Review and Editorial Board member of other journals. He has served on a number of governmental and professional body committees and working parties in Australia and overseas, including the UK’s Mirrlees Committee and the HMRC International Panel on tax administration. Current at 04 July 2014 Click here to expand/collapse more articles by Chris EVANS.

Geoffrey Hart
BA LLb (Qld) LLM (Lon) FTIA, Senior Lecturer Business Law Discipline, Faculty of Economics Sydney University Current at 01 July 2008 Click here to expand/collapse more articles by Geoffrey HART.
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