Category Archives: Tax Month – December 2016

Estate of Erwin Binetter v FCT – assessments issued out of time for “fraud or evasion” held valid on the basis that the taxpayer had an onus (to show that the assessment was excessive) extends to this threshold issue

In 4 matters before the Full Federal Court involving amended assessments being issued to taxpayers “out of time” on the basis of “fraud or evasion”, the Court has unanimously confirmed that in the same way the onus of proof is on a taxpayer to show that an assessment is excessive, the onus of proof is…

CR 2016/91-92 : Fleetsu FBT Vehicle Log Book System; St Peter’s College (Adelaide) deferred salary scheme

On Wed 7.12.2016, the Commissioner issued the following Class Rulings: CR 2016/91: FBT: employers using the Fleetsu Vehicle Log Book System for car log book and odometer records. It applies to employers who use the Fleetsu “vehicle log book system”. It applies from 1 July 2016 to 30 June 2021. CR 2016/92: Leave – Deferred Salary Scheme for employees…

TD 2016/D6-D7 – The Commissioner’s view is that both a partnership with a corporate partner and a trust with a corporate beneficiary (including a discretionary trust) can have a ‘participation interest’ for exemption on distributions

On Wed 7 Dec 2016, the Commissioner issued 2 draft determinations concluding that first: a ‘partnership’ with a corporate partner and second, a trust with a corporate beneficiary, can have a ‘participation interest’. Draft Taxation Determination TD 2016/D6 asks: ‘where an Australian corporate tax entity is a partner in a partnership, can the partnership ‘hold’ a…

LCG 2016/D10 – Superannuation reform: ‘non-commutable’ defined benefit income streams become taxable over $100k (1/16th of ‘transfer benefit account cap’) because the excess benefit could not be commuted

On 7 Dec 2016, the ATO issued Draft Law Companion Guideline LCG 2016/D10 headed: Superannuation Reform: defined benefit income streams – non-commutable, lifetime pensions and lifetime annuities’ ). This relates to $1.6m ‘transfer balance account cap’ introduced by the Treasury Laws Amendment (Fair and Sustainable Superannuation) Bill 2016 (which received Royal Assent on 29 November 2016). This Act introduced a system…

Re Micallef and FCT – assessments amended treating unexplained amounts treated as ‘assessable’ – defence that they were parial repayments of a loan to a ‘con-man’ failed due to inconsistencies of evidence and taxpayers’ onus

A taxpayer has failed before the AAT to prove that 4 amended assessments were excessive. The taxpayer conducted a fitness business on the Gold Coast. During an audit of the taxpayer’s affairs, the ATO discovered a number of transactions, which, in its view, were not satisfactorily explained and decided that certain sums flowing into the…

Re WTPG and FCT – taxpayer denied a deduction for the cost his wife’s ‘travel expenses’, to enable her to care for the debilitating effects of his disabilities and thus enable him to travel to the UK for his employer: s8-1 & s26-30

A disabled taxpayer has been denied a deduction for his wife’s travel costs where she accompanied him to conferences overseas. The taxpayer needed a carer to assist him in performing a number of daily tasks such as walking, showering, using the toilet and dressing. In the 2013-14 income year, he paid for his wife wife’s…

FCT v Rawson Finances Pty Ltd (No 4) – order made to send “letter of request” to Israeli judicial authorities to examine persons with knowledge of the alleged ‘back to back’ loans of the Binetter family companies

In a long-running Wickenby matter, the Federal Court has granted the Commissioner’s interlocutory application to send a “letter of request” to the judicial authorities of Israel to take evidence from several managers of an Israeli bank in his attempt to set aside the decision of the Full Federal Court in Rawson Finances Pty Ltd v FCT…

Doutch v FCT – CGT: small business CGT concession for $11m capital gain depended on an associated drilling company having less than $2m turnover, which turned on whether $55k in ‘fuel disbursement receipts’ were included

The Full Federal Court has unanimously dismissed the taxpayer’s appeal from the decision in Re PFGG and FCT [2015] AATA 972 and confirmed that fuel disbursement receipts he received were ordinary income that he derived “in the ordinary course of carrying” on his mining business. As a result, the taxpayer failed to meet the “small…

TDP 2016/1 – ‘electronic distribution platforms’ (EDP’s)– ATO issues a discussion paper on treatment in new GST legislation (digital supplies to Australian consumers and sub-$1k imports of goods

The purpose of issuing this consultation paper was seek input on the advice and guidance products operators of EDP’s and other might need to comply with the legislation. The ATO is seeking input to highlight areas that are unclear, cause difficulties in understanding or areas where there are practical compliance issues. Digital supplies to Australian…

Foreign resident capital gains withholding – ATO advises of ‘clearance certificates’ online and provides links to relevant forms – with a background on the detailed operation of the whole regime

New rules apply to vendors disposing of certain taxable Australian property under contracts entered into from 1 July 2016. A 10% non-final withholding will be applied to these transactions at settlement. Australian resident vendors selling real property will need to obtain a clearance certificate from us prior to settlement, to ensure they don’t incur the 10%…