Published on 01 Feb 04
by "THE TAX SPECIALIST" JOURNAL ARTICLE
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.
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