Deeming provisions

Ellison v Sandini Pty Ltd [2018] FCAFC 44

This case reminds us that deeming provisions are to be read strictly in line with their purpose14

A general rule operated to engage CGT provisions ‘as if you had received money or other property if it has been applied to your benefit … or as you direct’15.  Jagot J (at [209]) said legal fictions are not construed beyond what is necessary to achieve their object.  As a result, the CGT rule did not make a person the owner of shares merely because they were applied as she directed.  This case underlines the care to be taken when assessing the purpose of a deeming provision, something often complicated by the need to make artificial assumptions. 

This case is from Episode 35 of interpretationNOW!


14 Episode 4, Comber (1986) 10 FCR 88 (at 96), Howard [2012] FCAFC 149.

15 s 103-10(1) of ITAA97 – Entitlement to receive money or property.