Monthly Archives: March 2017

TD 2012/19 – When non-share equity interest is issued through a PE [35]

This TD, issued Wed 18.7.2012, provides that a non-share equity interest will be taken to have been “issued at or through a permanent establishment” for the purposes of s215-10(1)(c) of the ITAA 1997 where the capital raising is a transaction “of” the business carried on by an authorised deposit-taking institution (ADI) at or through the…

TD 2012/18 – NZ citizens are still ‘temporary residents’ after departing under their ‘special category visa’ as their citizenship still gives them ‘visa’ access [34]

This TD, issued on Wed 11.7.2012, provides the Commissioner’s views as to whether a New Zealand citizen who was present in Australia on a Special Category Visa but departs Australia, still holds a temporary visa for the purposes of para (a) of the definition of “temporary resident” contained in s 995-1(1) of the ITAA 1997.…

Clark v FCT and International All Sports cases – so far as they relate to ‘Calderbank Offers’ – no change to PS LA 2009/9 (Conduct of Litigation) [32]

The ATO on Tue 10.7.2012, issued Decision Impact Statements on Clark v FCT [2010] FCA 415, FCT v Clark (No 2) [2011] FCAFC 140, and International All Sports Ltd & Anor v FCT [2011] FCA 1027. The cases all concerned offers of compromise under Order 23 of the Federal Court Rules (FCR) and Calderbank Offers.…

TR 2012/D5 – Public unit trusts in a stapled group and connected entities [33]

This Draft Ruling, released on Wed 25.7.2012, sets out the Commissioner’s views as to when the interest in a company will be taken to be an interest that is held by a public unit trust that is a connected entity of the company for the purposes of para 974-80(1) of the ITAA 1997. The Draft…

Lake Fox case – Health insurance not a s58M exempt FBT benefit – not in respect of work related medical screening or preventative health care [31]

The ATO Fri 6.7.2012, released a Decision Impact Statement of the decision in AAT Case [2012] AATA 265, Re Lake Fox Limited and FCT. In that case, the AAT held that payments for private health insurance provided to employees by a taxpayer were not exempt benefits as the expenditure was not “in respect of” work-related…

Tandem master parachutist was an ‘employee’ for SGC purposes – entertainment or sport [30]

The ATO on Thur 5.7.2012, released a Decision Impact Statement on the decision in AAT Case [2012] AATA 120, Re General Aviation Maintenance Pty Ltd and FCT. In that case, the AAT affirmed a business was liable to the super guarantee charge (SGC) as the work provided by a tandem master parachutist it paid was…

*Greenhatch case – only discounted capital gain is assessable to the beneficiary [29]

The taxpayer has lodged an application for special leave to appeal to the High Court from the Full Federal Court decision in FCT v Greenhatch [2012] FCAFC 84. The Full Federal Court had unanimously upheld the Commissioner’s appeal and held that the assessable income of a beneficiary presently entitled to a discounted capital gain made…

*Re Yazbek and FCT – Commissioner’s amendment within time under s170(1), item (1)(d) because Taxpayer was a “beneficiary of a [discretionary] trust” despite getting no distribution [28]

In an interlocutory matter, the AAT has held that a taxpayer was at all relevant times a beneficiary of a trust estate and that an amended assessment issued in April 2010 for the 2005 tax year was issued within time – that is, within 4 years pursuant to Item 4 of s 170(1) of the…

Re Armirthalingam and FCT – Taxpayer fails to show assessments excessive re gambling and motor vehicle claims [27]

The AAT has found that a taxpayer has failed to satisfy the burden of proving that amended assessments issued to him for the 2000 to 2002 years were excessive. The assessments were made on the basis that the taxpayer had understated his income by some $190,000, $243,000 and $169,000 in each of those years, and…

*Re Fayle and FCT – PSI: taxpayer cannot re-litigate matter previously decided against him [26]

The AAT has exercised its powers to summarily dismiss an application by a taxpayer who sought to argue that he was carrying on a personal service business in respect of horticultural consultancy service provided by his family company to a related company. It did so essentially on the basis that the taxpayer was seeking to…