Monthly Archives: August 2016

TD 2016/D3 – Employee Share Schemes – What sort of rights (indeterminate rights) ‘become a right to acquire a beneficial interest in shares’ and thus deemed to be ESS interest all along under s83A-340

On 17 August 2016, the Commissioner issued draft Determination TD 2016/D3, which is about a technical point to do with the employee share scheme (ESS) provisions in Div 83A of the Income Tax Assessment Act 1997 (ITAA97) and the Income Tax (Transitional Provisions) Act 1997 (Transitional Act). The draft determination asks the question: in what circumstances does a…

FCT v Bosanac (No 2) – Grant of stay for $9.3m debt recovery – “extreme personal hardship” if bankrupted and (in practice) was precluded from pursing his complex appeal on the objection decision

The Federal Court has granted a taxpayer’s application for a stay of the execution of summary judgment previously granted in favour of the Commissioner in FCTv Bosanac [2016] FCA 448 for $9.3m. In doing so, it found that there were special circumstances to grant a stay on the basis of “extreme personal hardship”. In particular, the Court…

Provision of general purpose financial statements by significant global entities ($1b plus global turnover) who don’t already lodge this with ASIC – s3CA of the TAA – ATO consultation process

On 15 August 2016, the Commissioner uploaded the following statement about the consultation he is carrying out on gathering ‘general purpose financial statements’ from ‘significant global entities’ under the 11 December 2015 insertion of s3CA of the Taxation Administration Act 1953. [ATO website – s3CA of the TAA consultation] [LTN 156, 15/8/16] Provision of general…

Rigoli v Commissioner of Taxation – 2nd Full Federal Court held that the taxpayer could not discharge his onus of proof by relying on the Commissioner’s accounting report tendered as the basis for the quantum of his default assessment (after no records and no returns)

On 12 August 2016, the Commissioner issued a Decision Impact Statement of the Full Federal Court decision in Rigoli v Commissioner of Taxation [2016] FCAFC 38. Brief Summary of Facts – During the 1994 to 2001 income years, the taxpayer carried on business in partnership. The partnership did not keep business records. The taxpayer did not…

Vic land tax: Frontlink Pty Ltd v Comr of State Revenue – primary production exemption mainly refused to a developer (lack of evidence a big issue)

On 9 August 2016, the Victorian Civil and Administrative Tribunal decided largely against a taxpayer seeking the primary production land tax exemption for various properties over a number of years. The taxpayer was a land developer and lessor of land. At relevant times, the taxpayer owned land at Lyndhurst and Clyde North, Victoria. The taxpayer…

Vic motor vehicle registration duty: Mercedes-Benz Australia/Pacific Pty Ltd v Comr of State Revenue – no exemption for “courtesy” cars also said to be a ‘demonstrator vehicle’

On Thursday 11 August 2016, the Victorian Court of Appeal unanimously dismissed a taxpayer’s appeal against an earlier decision which had refused the taxpayer’s duty exemption claim on 2 vehicles under s231(2)(a) of the Duties Act 2000 (Vic). The above section (s231) provides an exemption from the imposition of duty on the registration of a motor vehicle,…

TD 2016/D2 – ATO proposes to rule that a foreign resident cannot make a s830-10(2)(b) election to be come a ‘foreign hybrid’

On 10 August 2016, the Commissioner issued this draft determination, asking the relatively technical question: Income tax: can a foreign resident elect to treat their interest in a limited partnership as an interest in a foreign hybrid limited partnership under paragraph 830-10(2)(b) of the Income Tax Assessment Act 1997? The draft answer given is: No. How do…

TD 2016/D1 – lump sum in place of periodic payments for work place injury ruled assessable as ‘ordinary income’ (despite compensation for loss of income earning capacity being ‘capital’)

On 10 August 2016, the Commissioner issued this draft Tax Determination, asking: Income tax: is a redemption payment received by a worker under the Return to Work Act 2014 (SA) assessable income of the worker? The Commissioner answers, ‘Yes, it is assessable as ‘ordinary income’ under s6-5(1) of the Income Tax Assessment Act 1997 (ITAA 1997) (see para 1…

ACNC announces compliance retrospective revocations of 2 organisations charity status with consequent loss of tax concessions – ‘Ethan Affordable Housing Ltd’ and ‘Kids Cancer Relief NSW Inc.’

On 9 August 2016, the Australian Charities and Not-for-profit Commission (ACNC) announced that it had revoked the ‘charity’ status of two organisations, back to 1 July 2013, and with that, they will lose all relevant Commonwealth tax concessions back to that date also. The organisations are: Ethan Affordable Housing Limited (ABN 22135818245), which had its charity status revoked by the…

Woods v Australian Taxation Office & Ors – the taxpayer alleged the ATO breached a contract and was owed money, net of her tax, and alleged that her tax had been paid by promissory notes, but her claim was struck out

A taxpayer has been unsuccessful before the Qld District Court in a matter concerning alleged promissory notes to discharge a tax debt and claimed breaches of alleged contracts by the ATO. The taxpayer commenced legal proceedings for money said to be owing to her pursuant to 2 contracts said to have arisen between herself and,…