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The ATO has issued a Decision Impact Statement in relation to the decision of the New South Wales Supreme Court in Atlantis Holdings Pty Limited in its capacity as trustee of the Bruce James Lyon Family Trust [2012] NSWSC 112 (22 February 2012).

The case concerned the Commissioner's challenge to an application brought by a trustee under s 63 of the Trustee Act 1925 (NSW) for judicial advice in circumstances where the trustee had lodged objections against an assessments made by the Commissioner.

Rein J held that the application should be dismissed on the basis that the trustee was not actually seeking advice as to what it should do (as contemplated by s 63) but rather was seeking a determination of the key issues in its dispute with the Commissioner. His Honour noted such a determination was not within the purview of s 63 and it would be inappropriate to provide judicial advice on the matters sought.

The Decision Impact Statement states that "the Commissioner views the decision as confirmation that Part IVC proceedings are the appropriate mechanism for challenging the correctness of an assessment. In appropriate cases, the Commissioner will seek to challenge proceedings commenced by a taxpayer under provisions equivalent to s 63 of the Trustee Act that agitate the very issues that are central to the correctness or otherwise of an assessment that will be the subject of Part IVC proceedings."


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