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Part IVA and the conclusion as to dominant purpose: preconditions for appeal and the impact of Mochkin


This paper considers questions flowing from the Full Federal Court decision in FC of T v Mochkin. The High Court has previously treated a conclusion as to the dominant purpose of a scheme consistently with it being a decision of law open to appeal. However, the approach adopted by the Full Court in Mochkin suggests that conclusion is a finding of fact. The characterisation of the conclusion as one or the other impacts upon the preconditions for appeal against the conclusion in the higher courts. This paper concludes that the better view is that a conclusion as to dominant purpose is a decision of law, and that the approach of the Full Court in Mochkin is permissible but not mandatory.

Author profile

Jeffrey Chang CTA
Jeffrey is a Partner at Thomson Geer, where he advises on a wide range of taxation, structuring and superannuation issues with a focus on privately-held businesses and high wealth family groups. His is accredited by the Law Institute of Victoria as a taxation specialist. He has held a variety of committee roles with The Tax Institute and is presently a member of the Victorian State Council. Jeffrey is the author of numerous tax articles published in professional journals, and a regular presenter at The Tax Institute's seminars. - Current at 06 June 2016
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