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ASSESSABLE INCOME
Prepared by Sharad Luthra

Tax equation
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Income tax= taxable income x tax rates- tax offsets Taxable income= Assessable income- deductions
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What is assessable income


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6-1 diagram showing relation among concepts in this division


Assessable income

Ordinary income

Statutory income

Non-assessable non-exempt income

Exempt income

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Section 6-1 continued


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(1) Assessable income consists of ordinary income and statutory income. (2) Some ordinary income, and some statutory income, is exempt income. (3) Exempt income is not assessable income. (4) Some ordinary income, and some statutory income, is neither assessable income nor exempt income. For the effect of the GST in working out assessable income, see Division 17. (5) An amount of ordinary income or statutory income can have only one status (that is, assessable income, exempt income or non-assessable non-exempt income) in the hands of a particular entity.

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Important terms
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Ordinary income

Statutory income Exempt income


Non assessable non exempt income
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Ordinary income
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The words ordinary income are not defined in the legislation. The courts have laid down various propositions for determining whether an amount is ordinary income or not. None of these propositions are decisive and have to be applied to the facts of each case.

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Proposition 1
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Ordinary income is what comes in to the recipient or which has been beneficially derived by an entity [6-5 ITAA 97].

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Derived
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Taxpayer on cash basis When amount is received by the entity Taxpayer on accrual basis When the right to receive the amount arises

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Case example 1 : Constable v FCT


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Employers contribution to superannuation fund which could not be withdrawn by the taxpayer except on happening of some contingencies were not income of the taxpayer as they had not been beneficially derived by him or had not come in to him. Constables case is authority for non assessability of employers contribution to superannuation funds.

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Case Example 2:FCT v Cooke &Sheredan


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The taxpayers who were sellers of soft drinks were awarded a free holiday by their supplier. It was held that nothing had come in to the taxpayers as savings in expenditure is not something that comes in.

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Proposition 2
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Amount has to characterized at the time of derivation

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Constables Case
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In Constables case the taxpayer subsequently withdrew some amount from the super fund on fulfillment of certain conditions. The high court held that amount had to be characterized at the time when it was withdrawn from the super fund and not when it was put into the super fund. The court stated that the amount was not income at the time of withdrawal from superfund although it may have been income when it was contributed.
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Proposition 3
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Amount has to be characterized in the hands of the recipient

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Federal Coke v FCT


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Compensation payable to Bellambi by Li Nickel in consideration of Bellambi releasing it from a trading contract was paid to Federal Coke (subsidiary of Bellambi) was held not to be income in the hands of Federal Coke.

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Doctrine of constructive receipt


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The court stated in federal coke that if the assessment had been made in Ballambis hands then the doctrine of constructive receipt would have applied. Section 6-5(4) and 6-10(3) incorporate the doctrine of constructive receipt.

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Section 6-5(4)
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6-5(4) In working out whether you have derived an amount of *ordinary income, and (if so) when you derived it, you are taken to have received the amount as soon as it is applied or dealt with in any way on your behalf or as you direct.

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Section 6-10(3)
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If an amount would be *statutory income apart from the fact that you have not received it, it becomes statutory income as soon as it is applied or dealt with in any way on your behalf or as you direct.

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Proposition 4
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Amounts not convertible into money are not income

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Payne v FCT
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The taxpayer who was employed by KPMG accumulated frequent flyer points under the Quanta's frequent flyer program and redeemed them in the form of tickets for his parents (the tickets bought with points could not be sold/exchanged and the points could not be pooled or assigned). It was held that the taxpayer did not derive any income

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Tennant v Smith
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Mr Tenant a bank officer occupied rent free premises owned by his employer. He lived at the premises and transacted after hours business from there. He could not sublet the house and was obliged to vacate it on leaving employment. Held that he had not derived any income from the house.

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Statutory responses
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Section 26(e) Introduced to overcome the decision in Tenant v Smith. This section has residual application now due to the introduction of the fringe benefits tax.

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Section 26(e)
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[Allowances in relation to employment] the value to the taxpayer of all allowances, gratuities, compensations, benefits, bonuses and premiums allowed, given or granted to him in respect of, or for or in relation directly or indirectly to, any employment of or services rendered by him, whether so allowed, given or granted in money, goods, land, meals, sustenance, the use of premises or quarters or otherwise, not being(i) an eligible termination payment within the meaning of Subdivision AA; (ii) an amount to which section 26AC or 26AD applies; (iii) an amount that, under any provision of this Act, is deemed to be a dividend or non-share dividend paid to the recipient; (iv) a fringe benefit within the meaning of the Fringe Benefits Tax Assessment Act 1986; or (v) a benefit that, but for paragraph (g) of the definition of fringe benefit in subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986, would be a fringe benefit within the meaning of that Act; and
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Section 21 and 21A


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Introduced to overcome the decision in Cooke v Sherden. 21 Where consideration not in cash (1) Where, upon any transaction, any consideration is paid or given otherwise than in cash, the money value of that consideration shall, for the purposes of this Act, be deemed to have been paid or given. (2) This section has effect subject to section 21A.

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Section 21A
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21A Non-cash business benefits (1) For the purposes of this Act, in determining the income derived by a taxpayer, a non-cash business benefit that is not convertible to cash shall be treated as if it were convertible to cash. (2) For the purposes of this Act, if a non-cash business benefit (whether or not convertible to cash) is income derived by a taxpayer: (a) the benefit shall be brought into account at its arms length value reduced by the recipients contribution (if any); and (b) if the benefit is not convertible to cashin determining the arms length value of the benefit, any conditions that would prevent or restrict the conversion of the benefit to cash shall be disregarded. 21A(5)non-cash business benefit means property or services provided after 31 August 1988: (a) wholly or partly in respect of a business relationship; or (b) wholly or partly for or in relation directly or indirectly to a business relationship.

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26(e) v 21 & 21A


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26(e) is an assessing provision that includes in assessable income the value to taxpayer of certain benefits, allowances etc. Applies only in case of employer- employee relationship. 21 is not an assessing provision. It simply states that any consideration given otherwise than in cash shall be deemed to be paid or given. This section is subject is subject to 21A. 21A is also not an assessing provision and simply states that a non cash business benefit that is not convertible to cash will be deemed to be convertible to cash and provided the method of valuation. Applies only when there is a business relationship. Both 21 and 21A cannot convert an item into income. Only when an amount is income these sections become operative.
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Proposition 5
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Capital amounts do not have the character of income

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Distinction between capital and revenue


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The practical importance of the distinction has been reduced to due to the introduction of capital gains in September 1985 but the distinction is still important due to the following reasons. If an amount is capital it can be assessed only through the statutory route. If a receipt is capital and is assessed under the capital gains regime then it may be eligible for a 50% discount. If an amount is capital and all of the statutory provisions including capital gains are not applicable then the amount may not be taxable at all.

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Four approaches for distinguishing income and capital


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Dixons criterion from Sun Newspapers. Mere realization from California Copper Syndicate. Nature of consideration given for receipt. Fixed and circulating capital.
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Dixons Criterion Sun Newspapers


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This principle laid down the process-structure distinction in Australia. If an expense relates to the structure ie the business entity structure or organization set up for earning profit the expense is capital. Similarly receipts relating to loss or destruction or disposal of profit making structure will be capital. If the expense relates to the process by which profits are earned it is revenue. Similarly receipts relating to the ordinary process of earning profits will be revenue. The process structure distinction is often illustrated by reference to US decision Eisner v Macomber (1920) 252 US 189 where capital is compared to tree and income to fruit.
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Example on Dixon
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Shell paid the proprietor of a petrol station to buy and sell only Shell products for 10 years and for the next 5 years to sell only shell within a five mile radius of his premises. Is the amount received by the garage proprietor capital or revenue?

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California Copper Syndicate principle

The principle is that mere realization of an asset does not produce an income amount but where what is done is not merely a realization or change of investment, but an act done in what is truly the carrying on of business or carrying out of business then the enhanced value obtained from realization or conversion of asset will be income. In this case profit from sale of copper bearing land was held to be assessable income as it was always the companies intention to profit from the sale of land. The company did not have money to mine the land for copper at the time when it acquired the land.
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The Myers decision


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In Myer Emporium case the full high court restated the CCS principle and stated that receipt from a isolated transaction which was entered into otherwise than in the ordinary course of business will give rise to assessable income so long as the taxpayer entered into the transaction with the intention of making a profit. This decision will be discussed in detail later.
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Nature of consideration given for a receipt


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The character of an asset sold for a price or the character of cause of action discharged by a payment will ordinarily determine the character of receipt. This principal is consistent with Dixon criterion and CCS principle.

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MIM Holdings Ltd v FCT


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Compensation of 15mn received by the tax payer for entering into a contract to reserve a part of electricity generating capacity at its subsidiary for the electricity board was held to be assessable income.

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Circulating v Fixed capital


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Receipts arising from fixed capital are capital receipts and receipts from circulating capital are revenue in nature.

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Example 1
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Evans Medical Supplies v Moriarty The taxpayer was a Pharmaceutical manufacturer and whole seller in Burma and was paid compensation for providing information regarding confidential processes and for loss of right to export pharmaceuticals to Burma. Is the amount received revenue or capital?

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Example 2
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Rolls Royce Ltd v Jeffery Amount was received for supply of technical data, know how and training to countries who refused to purchase engines from Rolls Royce in order to encourage domestic industry. Is the amount capital or revenue?

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Example 4
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1.

2.

Mr A was injured at work and received an amount as compensation. Is the amount income or capital in the following circumstances. He was permanently incapacitated by the injury and compensation was received for permanent injury. He was temporarily injured and the sum was paid for lost earnings for six months.
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Example 5
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1.

2.

X ltd has received an amount for granting a licenses for a Cancer vaccine it developed recently. Is the amount capital or revenue in the following cases. An exclusive license was granted to Y ltd and X ltd gave up all rights to manufacture the vaccine. Five licenses were granted to companies for different parts of the world with X ltd retaining the right to manufacture the vaccine in Australia.

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Proposition 6
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Gifts unrelated to employment, services or business do not have the character of income.

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Hayes v FCT
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Mr Hayes had been an employee, co-director, adviser and company secretary of a company controlled by Richardson. Richardson sold his interest to some people (including Hayes) and left. After Richardson's departure the company did not do well and Richardson returned on the condition that Hayes would sell his shares to him. Richardson said to Hayes you wont lose anything, I will make it up to you some day. The company did very well under Richardson. On a later date Richardson made a series of disposition of shares to public bodies ,his sons and Hayes. Hayes had been fully remunerated at all times.The value of shares was held not to be income.
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Scott v FCT
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The taxpayer worked as a solicitor and had a long standing association with the Freestones. Following the death of Mr. Freestone he was responsible for grant of probate and administration of the estate. he got permission for rezoning of land and sold part of the land to pay probate duties and transferred the balance of the land to Mrs. Freestone. Later Mrs. Freestone gifted 10000 pounds to him. Mrs. Freestone clearly stated that the gift was made out of friendship. Scotts fee had been paid separately. It was held that the gift was not assessable.
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Brown v FCT
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The taxpayer a former Federal minister introduced the principal of a construction company (Monacorp) to prospective purchasers and lent his name to purchasers application to the Foreign Investment Review Board. He also acted as an intermediary when dispute arose over a sales contract. He allowed Monacorp to apply the $1mn commission payable to him against the cost of a townhouse constructed by Monacorps associate which was allotted to him. The taxpayer contended that the townhouse was a mere gift. It was held that the townhouse was income for services rendered.
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Moore v Griffiths
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A member of the successful 1966 English squad was paid 1000 pounds gratuitously by the football association. The donors motive was to pay personal tribute. Will the payment be income or capital?

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Proposition 7
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Proceeds of gambling and windfall gains are not income.

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General principle
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Unless the recipient is engaged in business the amount received from lottery winnings, betting, punting or gambling are not income.

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Martin v FCT
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The full high court held that amounts received by the taxpayer who owned several racehorses but was not by occupation a trainer, or bookkeeper or jockey was not income. The court stated that the taxpayer was merely a keen follower of the turf who derived pleasure from betting on racecourse and racing under their own colors. In Bobka v FCT the high court held that large scale betting is merely a past time. In a rare case where a taxpayer attended every racing and trotting meeting and punted heavily(270000$ in a year), leased an office, installed a computer and several telephone lines and employed some secretarial staff was held to be conducting the business of gambling.(See system and organization)
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Quiz contestants
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In general no liability to tax will generally arise when a member of the public participates in a contest or competition and wins a prize. However where the taxpayer makes regular appearances in TV or Radio programs whether as an artist or participant in some form of competition the amount would be assessable income.

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Proposition 8
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Amount derived from carrying on a business are income.

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Meaning of Business
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ITAA97 s 995-1 -business includes any profession, trade, employment, vocation or calling, but does not include occupation as an employee. Thus the section does not define business but states that business does not include occupation as an employee. Below we examine some of the rules laid down by the courts to determine whether there is a business or not.
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1PROFIT MOTIVE
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Generally profit motive is expected to exist for a business to be in existence. The fact that profit does not result is irrelevant. Activities with little prospects of commercial success will be characterized as hobbies. Gambling would also be so classified.

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Hart v FCT
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Hart conducted aerobatic competitions and provided joy rides in aircraft. During a period a considerable fleet of aircraft was assembled but during an eight year period the total income was 6190$ and expenditure was 357,381$. It was held there was no business.

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2 REPETITION AND REGULARITY

generally business is evidenced by regular and sustained activity. However in some cases isolated transactions have been held to be business. In IR Commrs v Livingston the refitting of a cargo steamer was held to be amounting to carrying on of a business.

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3 SYSTEM AND ORGANISATION


The degree of organization and system are important considerations in distinguishing a business from a hobby. This is one of the most important factors considered by courts as relevant.

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Ferguson v FCT
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The taxpayer a Navy Officer leased five cows for a period of four years and gave them to a management company for pasturing and breeding to build up a herd to be used in primary production activities which he planned to undertake upon his retirement from navy. The full federal court influenced by the fact that the taxpayer carried on his activities in a systematic and well organized way, held that the taxpayer was engaged in business. Fisher J said that venture as a whole had a commercial flavor
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Commr of taxation v Walker


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A taxpayer who began with only one Angora goat was held to be in the business of goat breeding, largely because the court was satisfied on the facts that the taxpayer was conducting his activities in a businesslike way for eg the goat was kept at a stud farm in another state, cared for by experts and used as a basis of a breeding program involving the transportation of live embryos.
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4 SIZE AND SCALE OF OPERATIONS

Generally larger the size and scale of operations the greater the probability that it will be treated as a business. Smaller the size and scale of operations the greater the importance of system and organizations.

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OTHER FACTORS
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Type of business structure used eg company or individual or trust. the nature of commodity used for eg purchasing a commodity with no domestic use indicates the existence of a business.

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Stone v FCT cont


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The court pointed out that she wanted to compete at the highest level and that cost money. She accepted grants to meet these costs and accepted conditions imposed on her by these grants. Her pursuit of excellence necessarily entailed the receipt of prizes, increased grants and opportunity to obtain more generous sponsorship agreements and hence she was carrying on a buisness.
Prepared by Margaret Drever and Sharad Luthra

Implications of Stone v FCT


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The high court has lowered the existence of business threshold when it found that the earning activities of Stone, an Olympic sportsperson amounted to a business because she turned her talent to account for a profit.

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What is taxable as business income

to argue that all receipts of business are income will be against the income capital dichotomy. Thus all receipts of business are not income.

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Receipts generally treated as business income


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Normal proceeds of business operations are income( CCS Principle) Income from isolated oneoff transactions(Whitford Beach) Income from extraordinary transactions(Myer Principal)

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Normal proceeds of business operations are income


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This principle was laid down in CCS The principle is that mere realization of an asset does not produce an income amount but where what is done is not merely a realization or change of investment, but an act done in what is truly the carrying on of business or carrying out of business then the enhanced value obtained from realization or conversion of asset will be income.
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Identifying the normal proceeds of business


Identify the precise nature and scope of business Determine whether the receipt is produced by the business or incidental to business.

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Precise nature and scope of business

To find the precise nature and scope of business we need to make both a wide survey and a exact scrutiny of taxpayers affairs.

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G P International Pipecoaters
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The taxpayer company was formed to for the sole purpose of carrying out a contract with SEC of WA which required the taxpayer to coat pipes. The taxpayer had to set up a plant to coat pipes. An amount of 4.675$mn received by the taxpayer for erecting the plant was held to be assessable income on the grounds that business of the company was performance of the contract.
Prepared by Margaret Drever and Sharad Luthra

FCT v Merv Brown


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The taxpayer sold some import quotas as a part of reorganizing its business brought about by a change in government policy. It was held that amount received was capital as only a small proportion of quotas were sold and sale of quotas was not an ordinary part of taxpayers business.

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Determine whether the receipt is produced by the business or incidental to business.


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FCT v GKN Kwikform Services Pty Limited Proceeds for scaffolding not returned by customers (given on hire to customers) were held to be income of the taxpayer who was engaged in the business of hiring out scaffolding as receipts were regular and ordinary incident of taxpayers business.

Prepared by Margaret Drever and Sharad Luthra

Income from isolated or oneoff transactions(Whitford Beach)


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Whitford beach was a company started by fishermen in 1954 for acquiring land which provided fishermen with access to their beachfront shacks. In 1967 three development companies acquired shares of Whitford and acquired control of the company for with a view to subdivide and sell the land. Subsequently extensive subdivision and development including construction of roads, provision of services and parklands took place.
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Whitford cont
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The high court was unanimous in holding that Whitford was assessable on profit made on land sale. The high court clearly stated that it was willing to treat isolated transactions as constituting a business generating gross income falling in 6-5 ITAA97.The court also stated that it would be far less sympathetic to the mere realization principle then in the past.
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Practical impact of whitford


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It brought into the purview of 6-5 ITAA97 a number of isolated business dealings which could not be taxed earlier. It limited the application of the mere realization principle

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Income from extraordinary transactions(Myer Principal)


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Myer made a loan of 80mn to Myer finance at 12.5% and then after 3 days assigned to Citicorp Canberra the interest due on the loan . Citicorp paid Myer 45.37mn. Citicorp had tax losses available to offset the interest it would receive in the future. The high court held that the amount of 45.37 mn received by Myer was assessable income. The court endorsed the judgment in Whitford.
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Myer continued
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The court stated that a gain made otherwise than in the ordinary course of carrying on business which nevertheless arises from a transaction entered into by the taxpayer with the intention or purpose of making a profit or gain may well constitute income. This will apply even if the transaction is extraordinary. The court also stated that the amount received would have been income simply on the grounds that it was received in and substitution of income Prepared by Margaret Drever Sharad Luthra

Conclusion on business income


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As a result of these decisions the concept of ordinary income under 6-5 has been expanded to include income from isolated and extraordinary transactions subject to certain conditions.

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Self study
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Leasing cases FCT v Cooling 1990 22 FCR42,90ATC 4472 Selleck v FCT 96ATC 4903 FCT v Montgomery 1999 198 CLR WMBE (6-500 6-750)

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Proposition 9
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Amounts derived from employment or the provision of services are income

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Voluntary payments
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Commr of taxation v Dixon An amount paid by a civilian employer to the taxpayer to make up the difference between the taxpayers Army pay and usual salary while the taxpayer joined AIF between 1940 to 1945 was held to be assessable income on the grounds that the taxpayer depended on the amount for regular expenditure on himself and his family.
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Voluntary payments - Cont


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Harris v FCT The taxpayer received additional payments from ANZ to supplement his pension between 1976 to 1979 because the bank decided that the pension was inadequate due to inflation. The payment was unsolicited and made with an understanding that there was no commitment to make similar payments in future years. It was held that the amount received was not income as it was an uncertain amount determined by the bank through separate decision every year. Prepared by Margaret Drever and Sharad Luthra

Kelly v FCT
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the taxpayer was a university student who played Australian rules football with East Perth Football club. He did not have a contract but received a set match payment. In 1978 the taxpayer won the best and fairest award and received a sum of 20,000$ from Channel 7. The court held that the amount was income because it was directly related to his employment as a footballer.
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Self study
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Tax ruling

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Proposition 10
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Amount derived from property are income

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What comprises income from property

The following items are generally regarded as income from property Rent Interest Dividends Royalties annuties

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Rent
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Rent means a payment received by lessor in return for use by lessee of real or personal property. Rent derived from business of leasing chattel will be business income but passive rent will be income from property Whether a payment is rent or not depends upon the substance of the matter and not on the description given by parties. Lease premium paid by prospective lessee to induce the lessor to grant lease is not rent but lease premium taxable under CGT provisions
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Interest
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Interest is payment made for the use of capital There are number of statutory provisions affecting the taxation of interest Where a loan is repaid in installments that include both interest and principal it is necessary to dissect the interest element.

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Dividend
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Any dividend received by a shareholder is normally taxable as income from property The taxation of dividends is governed by ITAA36 s 44- 47. Income from dividends includes any franking credits attached to dividends.

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Annuities
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An annuity is a regular or periodic payment made under a contractual obligation for a specified number of years or for life. The taxation of annuities is governed by ITAA36 27H and will be discussed later

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Royalty
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Ordinary royalty 6-5


Royalty Statutory royaltyITAA1997 15-20
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Ordinary royalty
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Royalty is the amount paid to the owner of property for right to use property or take a substance. At common law the payment under a royalty is calculated with reference to the quantity taken or is linked to the use of property in a manner proportionate to the benefit derived Payment for transfer of knowhow is not royalty if no right is granted even if payment is made as a percentage of sales.
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Statutory royalty
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A payment which is royalty by ordinary concepts but which includes capital amounts will be taxable under ITAA97 s 15-20. This will be discussed later

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Proposition 11
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Amounts received as substitutes or compensation for lost income are themselves income
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Proposition 11- cont


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Tinkler v FCT- Payments made to a taxpayer for loss of income (calculated with reference to his average earnings) who was unable to work due to a motor accident were held to be assessable income being a substitute of income. If the disability is permanent then the amount will be capital and not taxable. Where a cancellation results in termination of taxpayers business it will be capital receipt but where the cancelled agency or supply contract is one of many or is comparatively minor component of taxpayer wider business that amount will be income
Prepared by Margaret Drever and Sharad Luthra

Liftronic Pty Ltd v FCT


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The taxpayer sold, installed and maintained lift systems. Deficiencies in the equipment produced by Hyundai Elevator Co Ltd caused disruption and led to the loss of profits. Damages of 2.23 were paid for loss of profits and were held to be assessable income.

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Proposition 12
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Mutual receipts are not income

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What are Mutual receipts


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The basic principle on which mutuality is based is that one cannot derive income from dealing with oneself. The concept of mutuality is an extension of this principle.

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Effect of the mutuality principle


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The effect of this principle is that members subscriptions and payment for services( bar or dinning facilities ) are not income of a non profit club or association formed to pursue a common objective. The principle requires that any surplus not be distributed or be distributed in substantially the same proportion in which they were made. In other words the distribution should be return of subscriptions and not return on subscriptions
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What is outside mutuality


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A gain made by dealing with outsiders are income for instance interest on bank deposits and sales made to guests. Commr of Taxation v Australian Music Traders Association is an authority for the proposition that if a business or commercial venture is undertaken then amounts will become taxable. In North Ryde RSL club this principle was followed and an amount paid to the club by the licensee for conduct of keno was held to Preparedand by Margaret Drever and Sharad Luthra be income not a mutual receipt

Summarizing the propositions


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1.
2. 3.

4.

What amounts are income Amounts derived from business Amounts derived from property Amounts derived employment and provision of services. Amount received as substitutes for income

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Summarizing the propositions


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1.
2. 3. 4.

5.

What is not income Gifts unrelated to employment and business Gambling proceeds and windfall gains Mutual receipts Amounts not convertible into money(this has been largely overcome by statutory responses) Capital receipts are not income( largely overcome by CGT for post Sept 1985 assets)
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Summarizing the propositions


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1.

2.

Characterization of income Has to be done at the time of derivation of income Characterization has to be done in the hands of the recipient.

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How to apply the propositions


100

No single amount will satisfy all the propositions None of the propositions is decisive Each case has to judged on its own facts and circumstances.

Prepared by Margaret Drever and Sharad Luthra

101

CGT and income capital dichotomy

Many of the amounts that may escape taxation on the grounds of being capital may become taxable under the CGT regime.

Prepared by Margaret Drever and Sharad Luthra

Legislative backstabbing
102

If an amount is ordinary income and also covered by the CGT regime it will be treated as ordinary income because ITAA97 s 118- 20 expressly provides that capital gains are to be reduced by any amount which is ordinary income. This is contrary to the general proposition in 625(2) that where a statutory and general provision both apply the statutory provision will prevail. Why do you think it Prepared by Margaret Drever and Sharad Luthra

Sports related payments


103

Stone v FCT the taxpayer was employed full time as a policewoman and in her spare time achieved world ranking as a javelin thrower. She earned money from prize money, grants and sponsorship agreements. On appeal to the high court it was held that she was carrying on the business of a professional sportswoman. The court stated that she had turned her sporting ability to account for money.
Prepared by Margaret Drever and Sharad Luthra