Hapfam Pty Ltd v Commissioner of Taxation [1987] FCA 276

1. The application for an extension of time for the filing and serving of a notice of appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL from the Taxation Appeals Division of the Administrative Appeals Tribunal constituted by Dr. P.Gerber and Mr. K.L. Beddoe

BETWEEN: HAPFAM PTY. LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent CORAM: FOX J. DATE: 14 MAY 1987 REASONS FOR JUDGMENT EX TEMPORE

FOX J. This is an application for an extension of time in which

to file a notice of appeal to this Court from a decision of the Administrative Appeals Tribunal dealing with a taxation

The decision in question was delivered on 10 November 1986, but the letter enclosing it, which was sent on that day, was not received by the applicant until 17 November.

The principal of the applicant was then overseas and did

not return until 26 November 1986 and there was then the necessity of considering the matter and getting legal advice which was not forthcoming until early February 1987, at which time a decision was made. The present application was filed on 17 February 1987, that is, two months after the expiry of the stipulated time.

There were no grounds beyond the matters mentioned as to why the discretion of the Court should be exercised.in favour of the applicant. In particular, no submissions were made by the

applicant on the likelihood of success of an appeal.

The appeal to this Court from the Administrative Appeals Tribunal in taxation matters is the same as with appeals

generally from that Tribunal, namely on a question of law only.

In the present case the applicant claimed an investment

allowance deduction under Division 3, Subdivision B of the Income pk 8 t. 936 in respect of an amount of $20,600 which

was spent on the erection of a glasshouse, used for plant

The tribunal regarded the principal issue as one whether the glasshouse was a "structural improvement" within the meaning of s.82AE of the Act and there is nothing to show that they were

That the glasshouse was an item of plant within the

meaning of s.54 of the Act has not been disputed. It seems to me

plain enough that if s.83AE is applied on the footing that the glasshouse does not fall within the exceptions itemised in sub-paragraphss (b)(i) to (vi), it is ineligible for the investment allowance under Subdivision B. Whether it is, or is not, a "structural improvement" and whether it does, or does not, fall within any of the sub-paragraphs which I have mentioned, was treated before the Tribunal as a question of fact and so far as I

It is my view, on the evidence, that the glasshouse was a "structural improvement" and therefore that it was not eligible for investment allowance. As I have said, the decision that the glasshouse was a "structural improvement", in the context of what the tribunal decided and what has been put to me, seems to be substantially a question of fact. At all events, I am not satisfied it is otherwise. Being a "structural improvement", the glasshouse clearly fails to satisfy the particular sub-paragraphs of para.82AE(b) and in the terms of the opening words of that section, Subdivision B of the Act does not apply in relation to it.

In the circumstances it seems to me that leave should be refused and this I do. The order is that the application be

refused and that the applicant pay the respondent's costs.

I certify that this and the two (2) preceding pages are a

true copy of the Reasons for Judgment herein of his Honour

Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: