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Word Count: 964
The facts of the case were that the taxpayer formally called Transurban entered into an agreement with the Victorian Government for the City link project The taxpayer was required to pay the concession fees to the Victorian Government in return for the right to build and operate toll roads The Concession Deed provided that the taxpayer with the option of paying the concession fees by the issue of concession notes with the face value of amount payable The Concession was to be continued but subject to the Concession Deed until the end of the Concession Period The taxpayer claimed a deduction for the face value of the notes The Commissioner submitted that the expenses were not deductible and that they were of a capital nature However the taxpayer argued that the concessions were of a revenue nature and deductible under the general deduction provision The issues included whether the concession fees were a loss or outgoing incurred in - and properly referable to - the income years in which they arose under the terms of the concession deed The appeal also considered the characterisation of the concession fees that is whether they were losses or outgoings of a revenue or capital nature In this regard the issues raised consisted of whether the concession fees were properly regarded as consideration paid for the grant of a monopoly or other anti-competitive right or a sharing of profits or payments akin to a dividend or otherwise precluded from deduction as losses or outgoings of capital or of a capital nature At first instance in the Federal Court the primary judge concluded that the concession fees were not deductible His Honour was of the view that the Concession Fees were in the relevant statutory sense incurred by Transurban in each year of income Further his Honour was of the view that the claimed amounts in each year were referable to the relevant years of income in which the claim
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