Taxation Theories Law Tax Year

Question: Discuss about the Taxation Theories Law for Tax Year. Answer: 1. Issue Determine the status of tax residency of Fred for the given tax year. Rule The role of tax residency in determination of underlying tax liability and tax treatment cannot be overstated. As a result, the determination of tax residency becomes critical for which TR 98/17 prescribes four tests which the taxpayer can deploy. It is noteworthy that for Australian tax residency, only one of these tests needs to be satisfied by the taxpayer (ATO, 1998). Domicile Test This test is used primarily for determination of tax residency of domicile holders of Australia who have to stay abroad due to host of professional or other commitments. Two main conditions need to be adhered by the respective taxpayer. Possession of Australian Domicile (Domicile Act, 1982) Permanent Abode in Australia (Determined using IT 2650 ruling) Failure to comply with anyone would result in the test being failed and tax residency not conferred (Woellner, 2013) Residency test Due to lack of information on this test in relevant statute, the application of this test is driven by the guidance and precedents provided in relevant case judgments. The factors that need to be considered are summarised below (Deutsch et. al., 2015). Level of ties (Business, Personal Professional) in Australia along with the country of origin Expected stay duration and visit purpose Significant purpose of visit such as employment which does not last few months results in being treated as Australian tax resident. The extent to which social life in Australia resembles life in country of origin. 183 day test Essentially, the following two conditions need to be satisfied for passing this test (Sadiq et. al, 2015). Atleast 183 day in Australia during the same financial year for which tax residency is under consideration Intention for settling permanently in Australia to the satisfaction of the Income Tax Commissioner. Failure to adhere with any of the above would amount to failure in this test. Superannuation Test The government employees on deputation tend to stay in foreign lands and their annual tax residency status would be determined through their contribution to anyone of the two designated superannuation schemes (Gilders et. al., 2015). Application Domicile Test Not satisfied since no Australian domicile Residence Test Even after shifting to Australia, sizable ties with England due to children and home. The purpose of visit to Australia would be considered significant as Fred has migrated to Australia on possible long term professional commitment. Further, social life being led is similar to that in UK. Hence, test satisfied and tax residency accorded,. 183 Test Stay for more than 183 days but based on given facts intention to settle in Australia seems difficult considering no fixed investment in Australia. Hence, this test is not satisfied. Superannuation Test Fred is not employed by government. Hence not satisfied. Conclusion Fulfilment of a test under TR 98/17 makes Fred being entitled to an Australian tax residency for the given year. 2. Case 1: Californian Copper Syndicate Ltd v Harris (Surveyor of Taxes) (1904) 5 TC 159 Any particular transaction will be considered as a business activity, if the prime intention of the taxpayer is to make profit. Amount of profit and size of the transactions are not critical parameters to determine the types of the income received (Cassidy, 1994). If any transaction belongs to the sale of the land, then the presence of the motive of the profit making business plays a vital role to classify the types of the gain. Any investment without the intent of business would results realisation of the capital asset and would not be considered as ordinary (Bitomsky, 1991). In this case, California Copper Syndicate Ltd had spent major part of their money to buy a mining land, the company very well aware about the fact that they did not capable to sustain the mining operations due to lack of capital. However, they purchased the land and after some time sold it to some other mining company with the interchange of their shares. Although, the California Copper Syndicate Ltd denied aga inst the liability of tax with regards that the transaction made by the company was realisation of the capital asset (copper mining land) (Barkoczy, 2015). Court had provided the judgement that the company primarily knew about the financial status. They did not have capability to sustain the mining operations. They purchased the mining land with the undisclosed intention of selling the land and earning sizable profit. The objective of the company was totally business activity also the transaction would not be termed as realization of the capital asset. Therefore, revenue earned by the California Copper Company would be taxed under tax law (Krever Black, 2007). Case 2: Scottish Australian Mining Co Ltd v FC of T (1950) 81 CLR 188 According to the tax rule, any activity of realization of the capital asset will not be treated for the taxation and the generated revenue by sale of land will not be liable for tax (Sadiq et. al., 2015). In this case, the prime intention of the Scottish Australian Mining Company was to operate the coal mining operation on the purchased land. The company had done mining operation successfully for years and when the land did not have enough coal for mining, they finalised to sale the land. For this purpose, they made several sub-parts of the land and developed the same by constructing railways stations, school, and parks. The land was sold with substantial gains. The taxation authority in this case, Commissioner had decided that the sale of land was business activity for profit earning and would be taxed. The company had landed this case in court, after considering all the relevant factors about the case, Court had decided that the main intent of the concerned taxpayer was only coal m ining not to involve in business of sale of land (Deutsch et. al., 2015). Hence, the land sale would refer the realization of the asset and would not be liable for tax. Case 3: FC of T v Whitfords Beach Pty Ltd (1982) 150 CLR Any business activity with the motive of profit earning will be considered for taxation. In the given case, company had purchased a land nearby beach with the intention of drying the shacks to sustain their fishing business. In the year 1967, company decided to earn profit from sale of land. Hence, they sold the land to three land development companies. According to the case, the main business of the company was trading and land development. These land development companies subdivided the land and installed various necessary facilities to increase the market worth of the land. Company also did requisite amendment in the article of association of the company. After completing the process of land development, company sold the land and successfully received sizable earnings from the transactions. Therefore, after considering all the above factors, court had given the decision that the intention of the taxpayer was to earn profit from sale of land. The new owner did the same and same act ivity was registered in article of association (Gilders et.al., 2015). Therefore, the generated profit were termed as business profit and taxed due to the ordinary nature of the income. Case 4: Statham Anor v FC of T 89 ATC 4070 Statham and Anor were the two trustees of a land who was received a deceased estate. The deceased had purchased the land to conduct the farming. After years, the deceased had provided the 50% of the total land to a company, which was handled by his family members. The family members started doing all the respective activities to establish a cattle business on land. However, due to reverse conditions the cattle business would not be able to sustain properly. Therefore, they sold the land after making different sections on the land, with the intention of the realisation of the capital asset. According to the commissioner, the income earned from sale of land would be treated as assessable income and liable for tax. The owners of the company would not be ready to accept the decision and taken the case to court for further arguments. The court had opined that after considering all the factors, it can be concluded that the land was purchased with the focus of farming and then the new owner s also did not want to involve in any business activity (Krever Black, 2007). Hence, the income received by sale of the land would not be liable for tax as it was just realisation of the capital asset. Case 5: Casimaty v FC of T 97 ATC 5135 The taxpayer Casimaty had got a piece of land as a gift from his father to start the farming activity. The taxpayer did the same for years but he endured financial dues hence, he found a way to discharge this due to overcome this problem. He made subdivision of the farm land into small and large segments and start developing the land by constructing road, water supply facilities, fencing around the land for security. All these activities brought a high amount of profit. Casimaty had finally discharged his financial due with the help of the profit received by sale of land. The commissioner of tax decided that the sale of the land would be treated as a business activity to earn the profit. Another supportive argument was the subdivision of the land to enhance the revenue, would directly reflect the motive to earn money, which was ordinary income. Hence, this assessable income would be taxed under law and Casimaty had to pay the tax amount as per the norms of the tax law (Woellner, 2013 ). However, the taxpayer was not satisfied with this verdict of the commissioner and decided to take the case to court. The court provided the judgement that the earning of the profit from sale of land that to with the help of subdivided segments would indicate the situation of the taxpayer. He was facing a financial due, therefore, the decision of sale of land would not be considered as a business activity and hence, nature of the income was not ordinary. Thus, taxpayer was not liable to pay tax. Additionally, the sale of the land would be treated as realisation of the capital asset with respect to resolving the financial due (Barkoczy, 2015). Case 6: Moana Sand Pty Ltd v FC of T 88 ATC 4897 In this case, the owner of Moana Sand Pty Ltd had purchased a land in order to extract the sand. Company also involved in the marketing of the extract sand into the market. To operate this extraction business easily, the taxpayer taken all the necessary permits form the concerned authority. This extraction operation was carried for several years and company obtained sizable profit from this business activity. At certain point of time when the sand land did not have sufficient sand for the extraction process, hence the company decided to ripe this land into various sub segments and start selling them. This activity of the sale of land results a huge profit to the company. The tax commissioner argued about this case of sale of sand land would be business activity. This assessable income earned from sale of land would be taxed under law (Deutsch et, al, 2015). The taxpayer objected to this argument of the commissioner and landed the issue to court. Court gave the judgement that only the income which was coming from sale of land would be liable for taxation as the profit made by this activity was business activity of profit making, hence the nature of the profit would be termed as ordinary income and under tax law it would be taxed (Sadiq et. al., 2015). Case 7: Crow v FC of T 88 ATC 4620 In this particular case, the concerned taxpayer purchased a land with the help of borrowed money, the motive behind the purchasing the land was to sell the land. In the preliminary stage, the concerned taxpayer used the land for activities related to farming business. However, after short period of time, he made sub sections of the land and divided the land into 51 blocks. Once the blocks were ready to sell, the taxpayer started selling them to different buyers, this selling activity resulted revenue of $ 388,288. This issue arose when the taxpayer denied agreeing with the fact that this selling activity of blocks was realisation of the capital asset. However, this selling activity shows the nature of the revenue as assessable income and taxed under law. The court argued that the taxpayer was doing the farming business just to ensure that he was using the land for realisation of the asset (Krever Black, 2007). This would not be accountable for taxation. However, the selling of the l and would be termed as business activity and the received income would be treated for taxation. Case 8: McCurry Anor v FC of T 98 ATC 4487 Often, the concerned taxpayer showed that the sale of the land was realisation of the capital asset, so that they can be exempted from taxation, because the realisation of the capital asset would not be considered for taxation (Woellner, 2013). In this case, the issue was created, when the concerned taxpayer did not agree with the fact that the sale of the land come in the category of business activity to earn the profit, besides the fact that this was not a realisation of the capital asset. Two brothers had purchased a land with an inbuilt old house. After some time, they built a new three story house in place of old house. When the construction operation was complete, they began to sell the houses. However, due to adverse conditions of the market, they were unable to sell the houses. They started using one of the houses for their own living. They again tried to sell the house and in one year, all the houses were sold with return to a sizable profit. The court had given the judgemen t that the intent of the taxpayers at the time of purchasing were to sell the house to make money, hence, they construct new three story houses on it. Thus, the received income would be ordinary and would be liable for taxation (Gilders et. al, 2015). References ATO 1998. Taxation Ruling TR 98/17. Australian Taxation Office, Available online from https://law.ato.gov.au/atolaw/view.htm?Docid=TXR/TR9817/NAT/ATO/00001 (Accessed on August 21, 2016) Barkoczy,S 2015, Foundation of Taxation Law 2015,7th eds., CCH Publications, North Ryde Bitomsky, G 1991, The Concept of Assessable Income Has It Changed, Revenue Law Journal, Vol. 2, No. 2, pp. 37-43 Cassidy, J 1994, The Taxation of Isolated Sales under Section 25 (1) ITAA: TR 93/2 v Joint Submission, Revenue Law Journal, Vol.4, No.1, pp. 56-62 Deutsch, R, Freizer, M, Fullerton, I, Hanley, P, Snape, T 2015, Australian tax handbook 8th eds., Thomson Reuters, Pymont Gilders, F, Taylor, J, Walpole, M, Burton, M. Ciro, T 2015, Understanding taxation law 2015, 8th eds., LexisNexis/Butterworths. Krever, R Black, C 2007, Australian taxation law cases 2007, 4th eds., Thomson ATP. Pyrmont, N.S.W Sadiq, K, Coleman, C, Hanegbi, R, Jogarajan, S, Krever, R, Obst, W, and Ting, A 2015 ,Principles of Taxation Law 2015,8th eds., Thomson Reuters, Pymont Woellner, R 2013, Australian taxation law 2012, 6th eds., CCH Australia, North Ryde