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The Commissioner sought leave from the Supreme Court to appeal an earlier decision of the Tribunal, which had overturned his decision to group four companies, including the taxpayer, on the basis of inter-use of employees, under s71(3) of the Payroll Tax Act 2007 (Vic). The Commissioner contended that the Tribunal’s decision on that issue revealed an error of law, as the Tribunal had, incorrectly in his view, construed the phrase “perform duties” in s71(3) as requiring “a legal relationship” between the employee of the taxpayer and another business. The Supreme Court held, however, that the Commissioner had not shown a sufficient case of arguable error (as distinct, perhaps, from factual error) to warrant either the grant of leave or, if leave had been granted, for the appeal to succeed. The Commissioner’s application for leave to appeal was dismissed on 7 August 2012.

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