The AAT has held that dividends paid to the trustee of a superannuation fund, in respect of shares acquired in a private company at an undervalue, were "special income" for the purposes of the former s 273 of ITAA 1936 and has upheld the Commissioner's decision not to exercise his discretion in favour of the taxpayer to treat the dividends otherwise than as special income.
The taxpayer’s argument was that s 273 must be construed by focussing on the dividends paid during the relevant years and thus the circumstances obtaining in the relevant years, such that the acquisition of the relevant shareholding was at those times irrelevant. This argument was rejected by the AAT: FFWX and FCT  AATA 657 (AAT; Block DP and Frost M; 1 September 2009).
For a copy of the decision, go here
TAXVINE COMMENT: Section 273 ITAA 1936 has been replaced by s 295-550 ITAA 1997.