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04 Aug 14 Decision Impact Statement - Davsa Forty-Ninth Pty Ltd

The ATO has published a Decision Impact Statement in relation to the decision of the AAT in Davsa Forty-Ninth Pty Ltd as Trustee for Krongold Ford Business Unit Trust and FCT [2014] AATA 337; 2014 ATC 10-361.

The case concerned whether the Applicant was entitled to its claims for input tax credits (ITCs) in the relevant period and a decreasing luxury car tax (LCT) adjustment in relation to motor vehicles (cars). As highlighted by the AAT, the heart of the dispute between the Applicant and the Commissioner lay in whether the Applicant carried on an enterprise and acquired the cars subject to LCT to be used/held as trading stock. The AAT held that, while finely balanced, the Applicant should be regarded as an entity that has engaged in a series of activities that have sufficient indicia of business to be regarded as carrying on an enterprise, or to have been carrying out steps in the commencement of an enterprise.

The ATO states in the Decision Impact Statement:  "In reaching the conclusion that the Applicant was carrying on an enterprise, the Tribunal appears to have implicitly accepted that the Applicant was therefore holding the luxury cars for a quotable purpose. The Commissioner considers that the existing, legally binding authority on the issue of quotable purpose continues to be the Federal Court's decision in Melbourne Car Shop Pty Ltd v Commissioner of Taxation [2010] FCA 373."

The ATO continues:

"Notwithstanding the Tribunal's conclusion that the Applicant was not able to claim some of input tax credits sought because it did not hold the requisite tax invoices under subsection 29-10(3), the A New Tax System (Goods and Services Tax) Act 1999 Waiver of Tax Invoice Requirement Determination (No. 1) 2004 - Decision of a Court or Tribunal (WTI 2004/1) waives the requirement for a tax invoice in circumstances where a Court or a Tribunal decides that a taxpayer is entitled to an input tax credit under section 11-5. Therefore, in cases such as this where the Tribunal determines that there is an entitlement to input tax credits, the Commissioner will allow the taxpayer to claim that entitlement without the need to hold a tax invoice."


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