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The Federal Court (Mansfield J) has refused, in relation to an assessment raised pursuant to Part IVA ITAA 1936, to order the Commissioner to provide the taxpayer with particulars of what the Commissioner believed the taxpayer would have done had the Part IVA scheme not been entered into or carried out (described by Gummow and Hayne JJ in FCT v Hart (2004) 217 CLR 216 as the "alternative postulate").

At para 32, Mansfield J said:

"In my view, the applicant [taxpayer] is not entitled to the further and better particulars it seeks in relation to whether a “tax benefit” was obtained. The onus is on the applicant to establish that it would have undertaken or might reasonably be expected to have undertaken a particular activity in lieu of the relevant scheme, and that that activity would or might reasonably be expected to have resulted in a tax benefit similar to the tax benefit obtained by the taxpayer in consequence of the scheme. It is not for the respondent [Commissioner] to provide particulars as to what the applicant might have done, had it not entered the scheme. It is not within the Commissioner’s knowledge. That is matter for the applicant to prove."

Futuris Corporation Limited (ACN 004 336 636) v FCT [2009] FCA 600 (Federal Court, Mansfield J, 4 June 2009).

For a copy of the decision, go here

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