M o r g a n’ s   T a x   M o n t h

– April 2013 Developments –

This is a collection of developments in Australian tax law and practice that occurred in April 2013 and which aims at being of relevance to tax lawyers.*

F John Morgan
A member of the Victorian Bar (www.FJMtax.com)

Table of Contents




Acts & Bills

*Investment Manager Regime – third and final element: draft legislation [1]

Legislative Instruments (Sunsetting) Act 2012 spauns regulation repealing 1005 spent and redundant regulations [2]

Quarterly payments of R&D tax incentive offset for companies turning over les than $20m from 1 Jan 20114 – draft legislation released [3]

FBT regs amended re excluded LAHA and other fringe benefits from being ‘reportable fringe benefits’ for Commonwealth employees posted overseas and domestically [4]

PAYG withholding schedule made: back payments, commissions, bonuses [5]

Tax and Superannuation Laws Amendment (2013 Measures No 2) Bill 2013 – public hearing by House of Reps Economics Committee on 18 April [6]

ABNs and unregistered business names – draft regs released [7]

Tax loss incentive for major infrastructure projects: draft legislation released [8]



*Large corporates and multinationals to be forced to disclose tax payable figures [9]

State approved providers of ‘ethics classes’ in public schools to be eligible for DGR status – as an alternative to religious education [10]

*Tax deductions for work-related self-education expenses to be capped at $2,000 – per Treasurer’s announcement [11]

*Government to increase non-primary production income threshold from $65k to id=”mce_marker”00k for Farm Management Deposits [12]



High Court

Full Federal Court


Federal Court

Denlay v FCT – Wickenby: Garnishee notice to taxpayers’ super fund quashed – decision to issue notice because of ‘Wednesbury’ unreasonableness [13]

FCT v Nash – Timing of GIC deductibility: Commissioner’s appeal allowed [14]

Resource Capital Fund III LP v FCT – Taxpayer wins appeal: Aust/US DTA rules out assessability of $58m capital gain on sale of shares [15]


Federal Circuit Court

Administrative Appeals Tribunal (AAT)

*Re Alnot Pty Ltd and FCT – CGT: net asset value test failed – holiday home not used for personal use and enjoyment [16]

Re Wray-McCann and FCT – Amounts transferred overseas under pseudonym from fake address were assessable income and 75% penalty was upheld [17]

Re IOOF Holdings Limited and FCT – Taxpayer fails in second preliminary matter regarding a ruling rights to future income in a consolidated group [18]

Re The Gambler and FCT – Unexplained deposits not attributable to gambling winnings [19]

Re The Trustee for Oenoviva (Australia and New Zealand) Plant and Equipment Trust & Anor v FCT – No ATO reviewable objection decision, no jurisdiction [20]


Other Courts & Tribunals


Re Altnot Pty Ltd and FCT – small business CGT relief – despite winning in the AAT, the Commissioner appeals the basis of the finding on minimum net value [21]

Re Walters and FCT – Commissioner appeals AAT decision that it can review objections made prior to the amended assessments [22]

FCT v Macquarie Bank Limited – Commissioner seeks special leave to appeal to the High Court from ‘Mongoose’ Part IVA consolidation decision [23]

VN Railway Pty Ltd & Anor – taxpayer appeals decision to impose 75% penalty for intentional disregard of the law [24]




Decision Impact statements

*Southgate Investment Funds Limited v DCT – Broadbeach Properties did not prevent a stay of execution on a grant of summary judgment [25]

ATO View on Binetter v DCT – s264 notice valid and did over-ride the privilege against self-incrimination, notwithstanding foreseeable Part IVC proceedings [26]




TD 2013/D2 – Earnings for Defense Force personnel whilst on leave from active duty overseas, through accident or illness, remain exempt under s23AG [27]

TD 2013/D3 – support payments to subsidiaries not deductible under s8-1 (capital) or under the ‘black hole’ provision in s40-880 [28]


Class Rulings & Product Rulings


ATO Interpretive Decisions (ATOIDs)


Practice Statements


Tax Alerts


Other Commissioner news

*ATO data-matching program: online sellers with sales of $20k or over in the 2010/11 year will be identified and checked [29]

ATO writes to directors of companies with unpaid PAYG to explain their DPN obligations [30]

ATO Data-matching program to determine tax compliance amongst 1 million visa holders [31]

Australian Business Registrar to review register and cancel ABNs where no ‘enterprise’ is being carried on (and remind holders to update particulars) [32]

Company loss carry-back: ATO administrative treatment – don’t claim yet for 2012/13 year (wait for Royal Assent and further advice) [33]

Proposed Pt IVA amendments: ATO administrative treatment [34]

Consolidated groups and ‘rights to future income’ changes: ATO to widen its compliance work to be ‘fair and equitable’ to large business taxpayers [35]

ATO Taxation Statistics 2010-11 – an increase in collections on the previous year in all main categories [36]




Legislation & Announcements (GST)

Tourist Refund Scheme for GST refunds now easier to access – doubled period before leaving and multiple invoices over A$300 [37]


Cases (GST)

Re Brookdale Investments Pty Ltd and FCT – GST liability on Commissioner’s higher “consideration” amount for land stands [38]

*Thiess v Collector of Customs & Ors – no recovery of mistakenly paid customs duty and GST on importation of a yacht [39]

*Re GOL-HUT Pty Ltd as trustee for the Helensvale Unit Trust – Decreasing adjustment denied: not registered for GST [40]

*ATS Pacific Pty Ltd v FCT – Supplies of Australian products to non-resident travel agent not GST-free as they were for their non-resident clients but booking percentage was GST-free [41]

*Unit Trend Services Pty Ltd v FCT – Commissioner granted stay in GST case to defer ‘margin scheme’ treatment until High Court decision comes down [42]


Rulings & Other things (GST)

ASIC bans accountant for dishonest conduct re SMSF money [43]



Legislation, Announcements etc. (Super)

*Major super reforms announced: tax-free pension earnings capped; contributions cap increased for over 60s; and more [44]

*Tax relief for super fund members transferred mandatorily to another fund under the MySuper refoms: draft legislation released [45]

MySuper and governance measures – draft regulations released [46]


Cases (Super)

FCT v Boyn – DIS on Federal Court’s decision that deductions and prior year losses didn’t have to be allocated in the Taxpayer’s favour [47]


Rulings & Other things (Super)

Over 2,000 approved SMSF auditors now registered [48]

ASIC releases report into quality of advice in SMSF sector [49]

Impact on tax and superannuation provisions indexed to AWOTE: proposals paper [50]

*APRA regulated funds (RSE licensees) warned about new SuperStream requirements – 3 day rollover and member identity check [51]

APRA SuperStream data collection form released for consultation [52]








*Statutory definition of ‘charity’ for all Federal legislation: draft legislation released [53]






The Inspector General of Taxation’s 10th Anniversary [54]




Re Frugtniet and Tax Practitioners Board – Tax agent deregistration – application for stay refused [55]

Tax Practitioners Board updates list of qualifications [56]

Re Kuan and Tax Practitioners Board – BAS agent registration granted for shorter period than sought; no jurisdiction to review [57]




Legislation & Announcements (State)

ACT – 1st Tranche of 20 Year plan to reform Territory’s taxes announced in 2012/13 budget – including abolishing commercial land tax [58]

NSW taxes – abolition deferred yet again by NSW Government to help fund acceptance of the Gonski education package [59]

Victorian FHOG to be lifted from $7k to id=”mce_marker”0k on new premises from 1 July but ends for old premises then – all first home buyers get 40% reduction in duty [60]


Cases (State)

National Mutual Life Association & Ors v Comr of State Taxation – High Court refuses taxpayers leave to appeal in case about the meaning of ‘life insurance’ [61]

NSW land tax: De Marco & Anor v Chief Comr of State Revenue – lawful use not required for PPR exemption, but matter remitted to ADT re ‘residential land’ [62]

NSW land tax: Payne v Chief Comer of State Revenue – primary place of residence exemption allowed to taxpayer who lived in garage on land [63]


Rulings & Other (State)




Reserve Bank Board leaves official interest rates unchanged at 3.0% [64]

Global Forum on tax transparency continues to evaluate the effectiveness of various country’s tax systems in exchanging information [65]

CPI: March quarter 2013 indexation factor about 0.4% and 2.5% for year to date (including ‘carbon tax’ effect) [66]






NB: I have gathered these articles from various sources for the purposes of study and teaching and I have acknowledged the sources. None of this publication should reproduced in breach of copyright belonging to the acknowledged source. The headings to the articles are often mine (and shouldn’t necessarily be attributed to the publisher).

Source Abbreviations: ‘EDTN’ = Electronic Daily Tax News, published by CCH; ‘LTN’ = Latest Tax News published by Thomsons; and ‘Taxvine’ is the weekly publication by the Tax Institute of Australia; Greenfields = Greenfields Financial Services; TaxBar = Melbourne Tax Bar Association Newsletter at www.vicbar.com.au / Members / Bar Associations / Tax

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