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TASMANIAN SCHOOL OF
BUSINESS AND ECONOMICS
BFA391 Taxation
Topic 1 ‐ Introduction to Taxation,
Residency and Source
• Criteria for liability to pay tax in Australia
• Residence
• Source
Text: Chapters 1, 3 (except 3.40 to 3.90) and 4 2
Introduction
• What is tax?
• “A compulsory contribution to the support of
government, levied on persons, property, income,
commodities, transactions, etc...” Oxford English Dictionary
• a “compulsory exaction of money by a public authority
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for public purposes, enforceable by law, and is not a
payment for services rendered” Matthews v Chicory Marketing
Board (Vic) (1938) 60 CLR 263, 276
• Involves the transfer of money and other resources from
taxpayers to the government
• “In this world nothing is certain but death and taxes”
Benjamin Franklin
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benefits, low cost housing)
Also used for socio‐economic purposes:
• for social engineering – to encourage and discourage
certain types of behaviour (tobacco tax, medicare
surcharge, deductions or offsets for certain super
contributions) 4
• Note that the Constitution contains some restrictions
upon the Commonwealth’s power – must not
discriminate between States
• Taxation is a constantly evolving system – in Australia it
has been the subject of considerable reform designed to
clarify, improve, explain but possibly tending to further 5
complicate
• Other taxes and imposts are levied by both the
Commonwealth and other levels of government in
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Australia, for example
• Customs duty and Good and Services Tax (GST) (Commonwealth)
• Stamp duty on commercial transactions, land tax (State
Governments)
• Council rates (Local Government)
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Legislation
• Two important Commonwealth Acts provide the
background to income tax in Australia
• 1936 Income Tax Assessment Act (ITAA36)
• 1997 Income Tax Assessment Act (ITAA97)
• ITAA97 is a rewrite of substantial parts of ITAA36 – not all
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of the original Act was rewritten
• Acts therefore operate concurrently
• Use of different words or style in ITAA97 does not result
in different meaning from ITAA36 unless clearly intended
• Retains precedent of case law from interpreting ITAA36 ‐
sec1‐3(1) ITAA97
• Need to refer to both Acts to solve most problems with 8
regard to income tax.
• A New Tax System (Goods and Services Tax) Act 1999
• Each of these is a Commonwealth Act and is identified by
the year it was first enacted
• Amendments made from time to time do not affect the
title of the relevant Act
• Check which Acts are reproduced (in part) in your 9
legislation book
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Case Law
• Court cases are a second source of taxation law in
Australia
• Meaning of words in Acts not always clear – case law
helps interpret the legislation through the principle of
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judicial precedent
• Case law provides decisions by relevant courts and
tribunals on the meaning of legislative terms and
provisions and how they apply to factual situations
• Details of relevant cases are provided on MyLO under
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specific topics and are also discussed in the text
interpreted
• Rulings play an important role in the self‐assessment
system (system where taxpayers ascertain their taxable
income)
• Taxpayers should be able to determine their tax position
with reasonable certainty and hence may seek or rely
upon rulings 11
• Includes
• Taxation Rulings (TR)
• Product Rulings (PR)
• Class Rulings (CR)
• Tax Determinations (TD)
• Regime contained in Div 359 Sch1 TAA, also see
TR2006/10 12
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Note:
• Rulings issued before 1 July 1992 not binding
• Commissioner has indicated he will generally stand by
these rulings unless there are good and substantial
reasons to depart from them
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• Distinguishing between non‐binding and prima facie
binding rulings:
• ‘IT’ (Income Tax Rulings) for pre 1 July ’92 rulings
• ‘TR’ (Tax Rulings) for post 1 July ’92 rulings
• Interpretive Decisions (IDs) are summaries of decisions
on interpretive issues – not rulings, not updated to
reflect changes in law and NOT binding 13
Private Rulings
• Issued on application by or on behalf of a taxpayer
• Relate to specified scheme and a particular taxpayer
• Only person to whom ruling applies can object to it
• Cannot be relied upon by other taxpayers
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• Withdrawn if inconsistent public ruling subsequently
made (same applies to oral rulings)
• Regime contained in Div 359 Sch1 TAA, also see
TR2006/10
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Oral Rulings
• Quick and convenient system for resident individuals
with simple tax affairs to obtain a definitive ruling on
‘simple’ issues
• Tax Commissioner may decline to make an oral ruling if
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too complex
• Must follow procedure in sec 360‐15 TAA
• Deals only with basic categories of assessable income,
exempt income, deductions and tax offsets ‐ sec 360‐
65(1) TAA
• Regime contained in Div 360 Sch1 TAA
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through a tax agent
• An assessment is the Commissioner’s ascertainment of
the taxable income and tax payable thereon ‐ sec 6(1)
ITAA36
• Under self‐assessment, assessment is based on the
return submitted but Commissioner also has the power
to rely on other material or information – sec 166 ITAA36
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• Most taxpayers have two years to amend assessments
6‐5(2), 6‐10(4) ITAA97
• Foreign resident taxpayers are assessed on their ordinary and
statutory income from Australia only ‐ sec 6‐5(3), 6‐10(5)
ITAA97
• Also note:
• Temporary residents – residents for tax purposes who qualify
as temporary residents – some concessions available such as
foreign sourced income not taxed – Subdiv 768‐R 17
• Working holiday makers – subject to special rate of tax from 1
Jan, 2017 – determined by their visa.
Residency
• Sec 995‐1 ITAA97 defines “Australian resident” by
reference to the term “resident” in sec 6(1) ITAA36
• Resident means a person who resides in Australia and
includes a person who:
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(i) is domiciled in Australia (unless permanent place of
abode outside Australia)
(ii) has been in Australia for more than half of the year
of income (unless usual place of abode outside
Australia)
(iii) is a member of a Commonwealth Government
superannuation scheme
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Residency
• Definition gives rise to four tests – one common law and
three statutory
• Residency status is considered on a year‐by‐year basis
• Need only satisfy ONE of the four tests to be classified as
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an Australian resident for taxation purposes
• To be regarded as a foreign resident of Australia for tax
purposes a taxpayer must fail all four tests
• Residency for tax purposes may differ to residency status
on one’s visa
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• Term “resides” not defined in legislation
• Macquarie Dictionary “to dwell permanently or for a
considerable time; have one's abode for a time”
• If person satisfies this test do not have to consider other
tests
• Whether a person “resides” in Australia is a question of
fact and degree 20
• purpose of visits to or absences from Australia
• business and family/social ties
• maintenance of a place of abode
• nationality
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Levene v IRC [1928] AC 217
• UK resident who always lived in London until 1919
• retired and sold house
• lived in hotels in England an abroad generally spending 5 months
in England for medical and social reasons
• Held to be resident of UK as time abroad of temporary nature
and had ties with UK
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Sneddon v FCT [2012] AATA 516
• Australian citizen went to work in Qatar in April 2008 – stayed 2 ½
years
• Maintained house, car, telephone, internet account, bank
account and super fund in Aust
• Earnings paid in $A into Aust bank account
• In Aust for 7 ½ weeks in 2009 22
• Held to be resident of Aust for 2009
• Does behaviour over time spent in Australia reflect a
degree of continuity, routine or habit consistent with
residing here?
• In particular the following factors should be considered:
• intention or purpose of presence (more than mere traveller);
• family and business/employment ties;
• maintenance and location of assets; and
• social and living arrangements
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• See examples at end of TR 98/17 and in text at [4.90]
• Origin – attributed at birth, usually domicile of father
• Choice – inferred by law, change of residence and intention
to make the change permanent or at least indefinite
• Dependency – eg. Infant’s domicile is that of its parents
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• FCT v Applegate (1979) 9 ATR 899
• 21 months on Pacific island, gave up flat in Aust and left no assets
• returned due to ill health
• held to have permanent place of abode on island ‐ initially
intended to stay indefinitely ‐ permanent does not mean
“everlasting”
• FCT v Jenkins (1982) 12 ATR 745
• agreed to a 3‐year stay overseas, returned after 18 months 25
• held to be non‐resident – 3‐year term regarded as “permanent”
• Intended and actual length stay overseas
• Duration and continuity of the stay overseas
• Intention to return to Australia at a definite future time or travel to
another country
• Establishment of a home overseas
• Whether any residence exists in Australia or has it been abandoned
• Durability of association with a particular place in Australia, eg
maintaining bank accounts 26
• See examples in text at [4.120]
place of abode is outside Australia”
• Person in Australia from February to November? Not
resident in either year under 183 day test alone ‐ other
factors must apply
• Period need not be continuous – can be an added
together
• Presence for 183 days does NOT necessarily mean person
will be treated as a resident for the whole year – must
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consider other factors
• TR 98/17, IT 2681
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The Commonwealth
Superannuation Test
• Third statutory test
• An individual is a resident if he/she is a contributing
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member of the superannuation fund for Commonwealth
government officers (ComSuper)
• The spouse or child under 16 of a person who is a
contributing member is also a resident
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Source of Income
• Remember:
• Resident taxpayers are assessed on their ordinary and statutory
income from all sources in and out of Australia ‐ sec 6‐5(2), 6‐
10(4) ITAA97
• Foreign resident taxpayers are assessed on their ordinary and
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statutory income from Australian sources only ‐ sec 6‐5(3), 6‐
10(5) ITAA97
• Source is the second criterion in determining liability to
income tax – where has the income been derived?
• No statutory definition – need to apply common law
principles and ask whether the relevant item has a
statutory source
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• Dependent on type of income derived, not taxpayer
• Under a contract of employment or contract for
services – generally where the services are
performed – see FCT v French (1957) 98 CLR 398
• Where creative powers or special knowledge is
involved to such a high degree that the place where
they are utilised is relatively unimportant – the place
where the contract was made – see FCT v Mitchum
(1965) 113 CLR 401 30
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• If business is mainly involved in performing a service
or the sale of goods – the place where the goods are
sold or service performed is the source
Interest Income
• Generally where the loan agreement is entered into
and money lent
• See FCT v Spotless Services Ltd & Anor (1996) 186 31
CLR 404 ‐ held not an Australian source
• See Thorpe Nominees Pty Ltd V FCT (1987) 88 ATC
4886 ‐ held an Australian source
Royalties
• Generally the location of the industrial or intellectual
property from which royalty flows
• However, outgoing royalties paid by Australian
company to foreign resident are deemed to have an 32
Australian source ‐ Sec 6C ITAA36
• Rates for Working Holiday Makers are on page 80 of the
textbook. 33
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$87,001 - $180,000 $28,275 plus 37c for each $1 over $87,000
$180,001 and over $62,685 plus 45c for each $1 over $180,000
• Note the following points for foreign residents ‐
• Zero tax free threshold
• Exempt from Medicare Levy
• Excluded from personal tax offsets
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Review
• Income tax is levied by the Commonwealth Government
• Two main Acts will be used in this unit ITAA36 and
ITAA97
• Case law helps give meaning to legislative terminology
• Rulings issued by ATO are Commissioner’s views on tax
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law
• Australia has a self assessment system
• Residence and source are the criteria for liability to tax in
Australia
• There are four tests of residency – only have to pass one
• Residents and foreign residents pay different rates of tax 35
• Source depends on class of income concerned
Next Lecture
Income
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Text: Chapters 5, 6, 8 and 9
Don’t forget to prepare answers to Tutorial
One before the tute! 36
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Copyright notice
© Copyright University of Tasmania, Tasmanian School of Business
and Economics
All rights reserved.
Commonwealth of Australia Copyright Regulations 1969 ‐ WARNING
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This material has been reproduced and communicated to you by or on behalf of the
University of Tasmania pursuant to Part VB of the Copyright Act 1968 (the Act). The material
in this communication may be subject to copyright under the Act. Any further reproduction
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