M o r g a n’ s    T a x    M o n t h

– December 2012 Developments –

This is a collection of developments in Australian tax law and practice that occurred in December 2012 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

NFP/Charities Bills receive Royal Assent: ACNC starts operation on Mon 3.12.2012 [1]

Unclaimed Money, FOI & Malaysian Free Trade Agreement legislation gained Royal Assent [2]

Tax Bill (No 6) to be reviewed by Lower House Economics Committee [3]

Exemption from having to provide payment summaries to the holders of passbook accounts for receipt of royalties etc. [4]

Tax Bill No. 5; Clean Building Tax Laws; NZ Super Transfer; and Personal Liability for Corporate Default Bills receive Royal Assent [5]

Debt interests for tax purposes: regs amended [6]

Court fees increase – amending regulations made [7]

Film tax offsets: definition of “documentary” – draft legn released [8]

Corporations Legislation Amendment (Remuneration and Other Measures) Bill 2012 – includes new test for payment of dividends – draft legislation released [9]

Departing Australian Superannuation Payments exempted from the Anti-Money Laundering and Counter Terrorism Funding Laws [10]



Anti-dumping system to be reformed [11]

New Australian Charities and Not-for-Profit (ACNP) Commissioner appointed [12]

Official launch of the ACNC [13]

NFP/Charities: draft governance standards and financial reporting framework for Australian Charities and Not-for-Profits & Govt consultation [14]

Multinational corporate tax minimisation – Treasury’s response to be informed by a specialist reference group [15]




High Court

FCT v Consolidated Media Holdings Ltd – Consideration for off-market share buy-back generated capital gain [16]


Full Federal Court

Intoll Management Pty Ltd v FCT – Dividends of $183m non-assessable, non-exempt under s 23AJ to unit trust head of a consolidated group [17]

Professional Administration Service Centres Pty Limited v FCT – Taxpayer’s appeal allowed: Petroulias’ GST appeal unjustly dismissed at first instance [18]


Federal Court

Federal Circuit Court

Administrative Appeals Tribunal (AAT)

Re Bocaz and FCT – Rental arrangements were commercial: deductions allowable [19]

Re Waldeck and FCT – Claims for PAYG withholding amounts: penalties remitted [20]

Re Elvy and FCT – Loss from investment in NBL basketball team not deductible [21]

Re Kingston & Anor and FCT – Tax avoidance scheme: trust distribution entitlement varied; penalties affirmed [22]


Other Courts & Tribunals

Evans v DCT – Difference between conclusive and non-conclusive RBA debts not appreciated and new trial ordered by NSW Court of Appeal [23]

Tomasetti v Brailey – Damages for negligent financial advice to be grossed-up for tax [24]




Decision Impact statements

ANZ case – Validity of s 264 notices requiring production of information held in Australia about Vanuatu clients [25]

Decision Impact Statements for Mitsui and Building Company cases [26]




TD 2012/D11 – Thin cap rules and special purpose securitisation entities [27]

TD 2012/D12 – Consolidated special purpose financial statements and foreign exchange translation [28]


Class Rulings & Product Rulings

CR 2012/110-114 – R&D; issues of convertible preferences shares; return of capital [29]

CR 2012/118-123 – Early retirement scheme; R&D; ETP; stapled security; takeover; contingent shares [30]



ATO Interpretive Decisions (ATOIDs)

Practice Statements

Tax Alerts

Other Commissioner news

GIC and SIC rates released for January-March 2013 quarter – base rate will be 3.24%; SIC 6.24% and GIC 10.24% [31]

ATO prosecutes over 400 for tax and super offences this last quarter [32]

ATO signs annual compliance arrangement with BAE Systems [33]




Legislation & Announcements (GST)

Cases (GST)

Cyonara Snowfox Pty Ltd v FCT – GST: timing of election for margin scheme; supply of going concern [34]

Re Chen & Anor and FCT – GST: margin scheme not applicable as no written agreement [35]


Rulings & Other things (GST)

GST and going concern: ATO view on the Re SDI Group Pty Ltd and FCT case in the AAT [36]

No immediate reduction in GST low value threshold, but changes possible [37]

GSTR 2012/5-7 – GST: residential premises; commercial premises; long-term accommodation [38]

GSTD 2012/11 – GST: Input taxed supplies and residential accommodation [39]




Legislation (Super)

MySuper Core Provisions Bill – start date proclaimed as 1 January 2013 [40]

MySuper Bill (Third Tranche) Receives Royal Assent on 3 December as Act No 171 of 2012 [41]

ASIC releases SMSF auditor registration guidance and competency standards [42]

SMSF auditor registration regime – SIS Regs amended [43]

Members uncontactable for 12 months deemed lost under changes to SIS regs [44]

SuperStream data and payment standards – SIS Regs amended [45]


Cases (Super)

Excess super contributions tax – “mistaken belief” as to timing of a salary sacrifice contribution was not a ‘special circumstance’ [46]

Interhealth Energies Pty Ltd as Trustee of the Interhealth Superannuation Fund v FCT – No leave to add new ground of appeal in SMSF case [47]


Rulings & Announcements etc. (Super)

Yrorita case – ATO view of early access to super case [48]

SMSF Professionals Association of Australia (‘SPAA’) offers Public Practice Certificate for accountant members [49]





Govt to retrospectively amend PRRT law following Esso case – to preserve the ‘look through’ right for related party payments [50]




Division 7A review – Tax Board discussion paper released [51]





Tax Practitioners Board appointments announced [52]




Legislation (State)

NSW: additional rate of mining royalty prescribed [53]

NT Mini-Budget: First Home Owner Grant and Principal Place of Residence Rebate increased; stamp duty concession for first home owners ceases [54]

SA: stamp duty concession for off-the-plan apartments; payroll tax: Bills receive Assent [55]

Vic: State Taxation and Other Acts Amendment Bill 2012 receives Royal Assent – Land Tax Changes & accompanying SRO Bulletin [56]


Cases (State)

Hibben & Ors v Comr of State Revenue – WA land tax: exemption denied for land being used for rural business [57]


Rulings & Announcements etc. (State)




Official interest rate lowered to 25 basis points to 3.00% [58]

Starbucks to volunteer tax payments in the UK by not claiming deductions on royalties to a related Dutch company – HMR&C not amused [59]

OECD review suggests lowering company tax rate and increasing GST rate [60]

Insolvency reforms: draft legislation released [61]

Substantive enactment of major tax Bills: AASB withdraws Interpretation [62]





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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