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The ATO has published a Decision Impact Statement in relation to the decision of the Full Court of the Federal Court in Cyonara Snowfox Pty Ltd v FCT [2012] FCAFC 177; 2012 ATC 20-362. The taxpayer's application for special leave to appeal to the High Court was dismissed on 5 June 2013.

The case concerned the application of the margin scheme and the going concern provisions of the GST Act; together with the four year limit on recovery in s 105-50 of Schedule 1 to the Taxation Administration Act 1953.

The Full Court rejected Cyonara's submission that it could retrospectively "choose" to apply the margin scheme in "working out" its GST liability for relevant sales of real property.

In this regard, the Decision Impact Statement states that the Full Federal Court's decision is consistent with the Commissioner's view, as expressed in GSTR 2006/7, GSTR 2006/8 and PS LA 2005/2 (GA), that s 75-5 of the GST Act, as it stood and applied prior to 29 June 2005, required a taxpayer to make a choice to apply the margin scheme no later than the time when the supply is made.


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