(This judgement meant he didn't need to consider the alternative that the transactions might have been a sham.) Barwick and Stephen on the other hand firstly disagreed with Justice Sheppard's initial conclusion that the transactions could have been shams, finding the documentation and negotiations between the parties ample. They noted in particular that Mullens didn't get the "two-way" option it had wanted (the right to force the Vam shareholders to buy back), so there was a real commercial risk being borne. Both justices then also disagreed with Sheppard and with McTiernan that section 260 applied. Their view was that section 77A was unequivocal about giving a tax benefit to those who subscribed for petroleum shares, like Mullens had. They noted there were no extra conditions in that section to be fulfilled (though perhaps there ought to have been for instance a minimum holding period). So with Mullens satisfying the requirements of a section of the act, applying section 260 would take away something the act explicitly gave. Stephen noted Justice Menzies in "Ellers Motor Sales Pty Ltd v Federal Commissioner of Taxation" (1969) who said it could not be that an advantage in one part of the act "was given merely to be taken away by the operation of s.260". The decision here that section 260 did not apply extended the prior "choice principle" from "Keighery v Federal Commissioner of Taxation". That case allowed the taxpayer to choose between two alternatives in the act, the Mullens decision allowed a taxpayer to enter a particular set of circumstances described by the act for the purpose of gaining the effects it described, even if those effects were beneficial. This latter principle was subsequently used in cases such as "Cridland". Section 77A of the ITAA 1936 was repealed before the court cases, that tax concession having apparently served its purpose. A not dissimilar example of tax benefit shifting came with dividend imputation in the 1990s. Foreigners were unable to use the imputation credits and so instead "sold" them to Australian institutions by transferring the shares to them just across the dividend record date. General anti-avoidance provisions didn't apply, because both parties' taxable incomes increased. A holding period rule of the kind alluded to by Barwick and Stephen above had to be instituted.