08 Oct 09 Special leave to appeal refused - Star City
On 2 October 2009, the High Court (Gummow and Crennan JJ) refused the taxpayer leave to appeal against the decision of the Full Federal Court in FCT v Star City Pty Limited  FCAFC 19.
In the Full Federal Court, Goldberg, Dowsett and Jessup JJ upheld the Commissioner's appeal from the decision of Gordon J at first instance, who had allowed the taxpayer's appeal against a decision of the Commissioner to disallow deductions for rental prepaid by the taxpayer in conjunction with the grant, by the NSW Casino Control Authority (CCA), of a casino licence and the grant of a 99 year lease of land upon which the casino was to be built. The rental prepaid ($120 million) was for the first 12 years of the term of the lease and represented the present value of an annual rental over that period of $15 million per annum. After the first 12 years, the rental reduced to $250,000 per annum.
The Full Federal Court held that the prepayment was a payment of a capital nature not deductible under s 51(1) of ITAA 1936 or s 8-1 of ITAA 1997 as the character of the advantage sought by the payment was the securing of the casino licence and the exclusive right to operate a casino in New South Wales rather than the quiet enjoyment of the casino site for 12 years.
For a copy of the transcript of the special leave proceedings, Star City Pty Limited v FCT  HCATrans 255 (2 October 2009), go here