McCormack v Commissioner of Taxation (Cth) [1979] HCA 18

McCormack v Commissioner of Taxation (Cth) [1979] HCA 18

Given procedural and factual errors below and the lack of a proper assessment of the credibility and weight of contemporaneous evidence (especially Mrs. Schwind's evidence), the matter must be remitted for proper determination by the Supreme Court of Western Australia after hearing oral evidence and evaluating witness credibility.

Jurisdiction
Australia
Procedural Posture
Tax Appeal / High Court Appeal From Federal Court Decision
Outcome
Appeal allowed; matter remitted for rehearing
Legal Topics
['income Tax Assessment' 'burden of Proof' 'purpose of Acquisition' 'profit Making by Sale']
['taxation'] ['income Tax Assessment' 'burden of Proof' 'purpose of Acquisition' 'profit Making by Sale']

Case Brief

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Procedural Posture

Tax Appeal / High Court Appeal From Federal Court Decision

Legal Issues

  1. 1 ['Whether property was acquired for the purpose of profit-making by sale under s. 26(a) of the Income Tax Assessment Act 1936' 'Whether the appellant discharged the burden of proof under s. 190(b)' 'Applicability of the onus of proof provision in s. 190(b) on appeal']

Ratio Decidendi

Given procedural and factual errors below and the lack of a proper assessment of the credibility and weight of contemporaneous evidence (especially Mrs. Schwind's evidence), the matter must be remitted for proper determination by the Supreme Court of Western Australia after hearing oral evidence and evaluating witness credibility.

Court Disposition

Appeal allowed; matter remitted for rehearing

Orders

  • ['Order of the Full Court of the Federal Court of Australia set aside.' 'In lieu thereof, order that the appeal to that Court be allowed with costs.' 'Order of that Court set aside.' 'Matter remitted to the Supreme Court of Western Australia for hearing and determination in accordance with the directions of this...