M o r g a n’ s   T a x   M o n t h

– September 2013 Developments –

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


*Coalition to introduce “tax receipt” for PAYG(w) taxpayers – if elected (and now they are) [1]

*Coalition to allow investors to deduct mining exploration expenses [2]

*Greens announce that if they have the power they will block the coalition repealing the carbon tax and abolishing the instant asset write-off and low-income super rebate [3]

Mr Hockey announced Treasurer and Senator Sinodinos announced as his assistant (following surprise elevation of Senator Cormann) [4]

*Incorporation of NSW barristers’ practices: motion defeated [5]

Coalition promises to clean up Labor’s legislation by press release on tax issues [6]

Offshore Banking Unit regime changes – start date deferred [7]




High Court

Full Federal Court


Federal Court

*Macquarie Bank Limited & Anor v FCT & Anor – taxpayers fail in bid to have OBU expense allocation applied only prospectively under ‘U-turn’ ruling [8]

*Buckeridge v FCT – Court holds that documents remain confidential in tax case [9]

*SPI PowerNet Pty Ltd v FCT Electricity transmission business – deduction for impost refused [10]


Federal Circuit Court

Administrative Appeals Tribunal (AAT)

*Re Chang and FCT; Re Bai and FCT – Deposits in personal bank accounts: mixed results for taxpayers [11]

*Re S J Buller Pty Ltd and FCT – WET: taxpayer was an associated producer; rebates denied [12]

*Re AP Energy Investments Limited and FCT – Foreign company not liable for CGT on sale of shares in Aust mining company – principal asset test failed [13]

*Re Russell and FCT – Self-education expenses and work-related expenses claims denied for lack of documentation [14]

*Re Beiruti and FCT – AAT had no jurisdiction to review the ATO’s refusal to give a credit for PAYG deducted, and refused an extension to review [15]

*Re Chemical Trustee Limited and Ors v FCT and Chief Executive Officer, AUSTRAC – Wickenby cases: AAT orders release of FOI documents and further review [16]

*Re Gerbic and FCT – Taxpayer liable for CGT on sale of property: no exemption [17]

*Re Harrison and FCT – UK pension lump sums assessable as ordinary income [18]

*Re Perry and FCT – Work-related deduction claims unsubstantiated, so penalty for “recklessness” confirmed [19]

*Re ACN 092 138 442 Pty Ltd (In Liquidation) and FCT – Director to obtain leave before commencing proceedings against objection decision [20]

*Re The Trustee For The Confidential Trust and FCT – AAT has no power to stay operation of objection decision [21]


Other Courts & Tribunals

*Victorian loan broker jailed for $1.3m revenue fraud [22]

DCT v Ramon Ronald Osborne as trustee for the Osborne Family Trust – Claim of not being a trustee failed and taxpayer jointly liable for RBA debt with wife [23]



*Resource Capital Fund IV LP & Anor v FCT & Anor – Commissioner appeals against decision that s255 notice didn’t apply and no tax to pay either [24]

*Sea Shepherd Australia Ltd v FCT & Anor – Taxpayer seeks leave to appeal decision finding them not a ‘Deductible Gift Recipient’ or ‘DGR’ [25]

*Pratt Holdings Proprietary Limited v FCT – Taxpayer seeks leave to appeal decision denying balancing charge losses on mining tenement [26]

FCT v Fabig – taxpayer seeks leave to appeal to the High Court from decision that the takeover was available on substantially the same terms to all vendors [27]




Decision Impact statements

Asset betterment assessments: ATO view on Gashi case [28]

*ATO view on Messenger Press case – Deduction for foreign exchange losses [29]




TD 2013/19 Capital gains tax: improvement threshold 2013-14 is indexed to id=”mce_marker”36,884 [30]


Class Rulings & Product Rulings

CR 2013/68-70 – Cancellation of shares; return of capital; early retirement [31]

CR 2013/71 – University Dairy training scholarship receipt are exempt from tax [32]

PR 2013/16 – Interest will be deductible on investment loan to purchase Macquarie Units – less cost of capital protection on loan [33]

CR 2013/72-73 – Voluntary early retirement scheme: ANU [34]


ATO Interpretive Decisions (ATOIDs)

Practice Statements

Tax Alerts

Other Commissioner news or statements

Rio Tinto signs tax compliance arrangement with ATO [35]

Tax scheme promoter convicted and sentenced to 6 years jail – 39th Project Wickenby judgment [36]




Legislation & Announcements (GST)

Cases (GST)

*GST: no creditable acquisition made, so input tax credits refused [37]

ATO view on Re Rod Mathiesen Truck Hire Pty Ltd case – consideration all received at settlement despite loan back to vendor who defaulted [38]

*Storage Equities Pty Ltd v Valuer-General – Land value of properties includes GST [39]

*GST- AP Group Ltd v FCT: motor vehicle incentive payments – taxpayer’s and Commissioner’s appeals dismissed [40]

*Cityrose Trading Pty Ltd v Booth & Anor – GST special clause in property contract held void [41]

GST: input tax credits denied, no enterprise carried on [42]


Rulings & Other things (GST)

GSTD 2013/3 – GST and acquisitions by a managed investment fund [43]




Legislation, Announcements etc. (Super)

Cases (Super)

*Re Floorplay Pty Ltd and FCT – Fishing crew members were employees, not contractors (despite ‘share of the catch’ clause); SGC liability affirmed [44]

Re Griffiths and FCT – Super excess contributions tax assessments affirmed [45]

*Re Sutton and FCT – Super excess non-concessional contributions tax affirmed [46]

Superannuation guarantee: Re The Trustee for the SR & K Hall Family Trust and FCT – workers were employees not contractors [47]


Rulings & Other things (Super)

ATO speech re compliance and future of SMSFs [48]

*ASIC releases proposed guidance on quality of SMSF advice to be given by advisers [50]

Auditing SMSFs: AUASB Guidance Statement revised [51]









Commercial law requirements for tax agents – transitional arrangements [52]

Tax practitioners mostly aware of the Tax Practitioners Board’s role, but between 19% and 43% think it gives technical tax or accounting advice [53]

Re Li and Tax Practitioners Board – Termination of tax agent registration: stay refused [54]




Legislation & Announcements (State)

ACT: FHOG and duty deferral – Bill awaits notification [55]

SA: Succession Duties Repeal Bill – introduced [56]

Tas: Taxation and Related Legislation (Miscellaneous Amendments) Bill – passes Lower House [57]

WA: Budget Bill awaits Assent [58]

WA stamp duty: prescribed transactions that are not dutiable transactions [59]


Cases (State)

NSW payroll tax: Lombard Farms Pty Ltd v Chief Comr of State Revenue – taxpayer wins appeal for de-grouping request – discretion matter of judgment [60]

NSW land tax: Jamsapi Pty Ltd v Chief Comr of State Revenue – primary production land tax exemption refused [61]

WA payroll tax: Wyn Recruitment Pty Ltd and Comr of State Revenue – penalty tax for late lodgment affirmed, no further remission [62]


Rulings & Other (State)

Qld stamp duty: securities; family businesses; adjudication fees – public rulings updated [63]

SA stamp duty: no administrative fee on refunds – Information Circular [64]

Vic stamp duty: reminder to pay duty within 30 days [65]



OECD presents G20 Leaders with proposal to tackle tax evasion [66]

G20: Automatic exchange of information by 2015 [67]

eBay power sellers and businesses registered on the ABR: social security and tax data-matching program [68]

ASIC focus on failed companies in illegal phoenix activity surveillance [69]

KPMG’s Family business survey – businesses vital but unprepared for succession [70]





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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