Essay: Residency & Source Issues In Australian Tax Law.

• Fred, an executive of a British corporation specialising in management consultancy, comes to Australia to set up a branch of his company. Although the length of his stay is not certain, he leases a residence in Melbourne for 12 months. His wife accompanies him on the trip but his teenage sons, having just commenced college, stay in London. Fred rents out the family home. Apart from the absence of his children,

Fred’s daily behaviour is relatively similar to his behaviour before entering Australia. As well as the rent on the UK property, Fred earns interest from investments he has in France. Because of ill health Fred returns to the UK 11 months after arriving in Australia. Discuss residency and source issues.

• Jenny is an accountant who works in Hong Kong. She is single and lives in Hong Kong with her parents. Until April 2017 her work does not involve travel. At that time she accepts an offer from her employer to travel temporarily to Australia to provide business advice to large numbers of former Hong Kong residents setting up businesses in Melbourne, Sydney and Brisbane. Jenny enters Australia on 25 April 2017. She intends to spend three months travelling between the three cities, staying in various motels. Her employer asks her towards the end of her three months to take up a position in Sydney for a further nine months. In early July, she leases a serviced executive apartment for nine months near her workplace in Sydney. The apartment is her home base during her stay here. She freights more clothing and some personal effects to Australia. Her parents visit her on two occasions. Although based in Sydney, her commitments require some limited travel. On average, Jenny travels at least once a week to meet clients outside Sydney. Is Jenny a resident of Australiafor tax purposes?

• Discuss whether the following are likely to be “ordinary” income:

• (a) Salary received by an employee.

• (b) Compensation received by an injured worker for loss of salary because he was unable to work for four weeks.

• (c) A Christmas present received by a daughter from her mother.

• (d) Proceeds from selling the copyright to a book. The recipient was an employee accountant who wrote a novel in her spare time over a number of years.

• (e) Proceeds from selling the copyright to a book, where the recipient is in the business of writing books and selling his copyright.

• (f ) Profit realised on the sale of shares that have been held for a number of years, primarily for their capital growth.

• (g) Unemployment benefits from the Government to an unemployed person.

• (h) A freelance photographer won an industry award for one of his photographs amounting to $4,000.

• (i) Payment received for sales of pottery. The sales relate to items that has been made as part of a hobby, however expenses are in excess of $1,000.

• (j) $200 received as an award for the best painting in a local art exhibition. The painter paints two or three artworks a year, which she displays at home or gives as gifts to family.

• Indicate any amounts from these transactions that is assessable income for the 2017/18 tax year.

• (a) Frida is a resident taxpayer employed by Sharpe Office Supplies. She received a gross salary of $60,000. This was paid into a bank account held by her husband Ray.

• (b) Frida did not take any annual leave during the 2017/18 tax year. She had accrued 5 weeks’ annual leave as at 30 June 2018 which has a value of $6,000.

• (c) Frida won $3,500 from her share of a Powerball syndicate with her work colleagues.

• (d) In April 2018, Frida received $1,500 cash as a prize for employee of the month.

• (e) In May 2018, Frida also received a holiday to Fraser Island valued at $4,000 as a reward for attaining the highest sales figures at work.

• (f) In July 2017, Frida received a wedding gift from her work colleagues worth $750 to celebrate her marriage to Ray.

• (g) In January 2018 Sharpe Office Supplies reimbursed Frida $3,000 of self-education costs upon the successful of her work-related logistics course.

• (h) Samantha Storey owns an apartment in Adelaide held as an investment which she leases to tenants and derives rental income. During the 2017/18 tax year, Samantha received rent totalling $19,000 from tenants who leased the property from September 2017 until May 2018.

• (i) On 18 January 2018 Samantha received $700. This was the tenant’s reimbursement towards cleaning the carpets and walls following damage from a New Year’s Eve Party.

• (j) On 10 December 2017, the tenants started a fire in the kitchen by accident. While the damage was contained to one part of the kitchen, Samantha received a cheque from her insurance claim, which covered:

• -$1,000 for a new replacement stove.

• -$3,000 for deductible repairs to the bench top and walls.

Mick Viduka a resident taxpayer holds shares in several Australian companies as investments.

The following transactions relate to distributions from these companies:

• On 1 August 2016, Mick received a cheque for $5,600 being a fully franked dividend from ABC Ltd.

• On 15 November 2016, Mick received a cheque for $1,800 being an unfranked dividend from DEF Ltd.

• On 20 December 2016, Mick received a statement from GHI Ltd that a fully franked dividend of $3,500 had been used to acquire an additional 350 shares (Mick participates in the company’s dividend re-investment program).

• On 17 February 2017, Mick was advised that he has received 300 shares from JKL Ltd from a bonus share issue. The market value of JKL shares on that date was $10 per share.

• On 24 June 2017, MNO Ltd declared an unfranked dividend of 10 cents per share. Mick holds 14,000 shares in MNO and received the dividend when it was paid on 9 July 2017.

• On 27 June 2017, Mick received a cheque from PQR Ltd dated 21 June 2017 for $700. The cheque is for an unfranked dividend, but Mick forgot to bank the cheque until 19 July 2017.

Mick does not have any other assessable income or deductions.

Calculate Mick’s taxable income for the 2016/17 tax year.

Calculate Mick’s net tax payable or refundable for the 2016/17 tax year.

• For each of the following resident individual taxpayers, state whether there are any amounts that would be treated as deductions. Give reasons.

• (a) Ernie pays $ 1,900 for an electricity account for his business premises.

• (b) Ian pays his home electricity bill of $700. He operates his business from his shop premises, but sometimes attends to some paperwork and planning in his living room while watching television.

• (c) Janice purchases a computer for her business costing $3,400 .

• (d) Fiona pays $ 750 for her home phone bill. She has kept records estimating that 60% of her calls relate to her business.

• (e) Stan pays $200 every week to have his home cleaned as he is too busy operating his business. He does not conduct his business from home but Stan argues that if he didn't hire a cleaner, he would not be able to run his business properly.

• (f) Rita pays a total of $ 12,000 in child care fees which enables her to continue her full-time job as a radiologist.

• (g) Tara pays $ 2,400 for a yearly train ticket which enables her to travel from her home to work each day.

• (h) Nicole pays $6,000 per year in board to her parents. She takes a lot of work home from her job and completes it at a desk in her bedroom.

• (i) Stu is employed as a legal assistant. He is currently studying law at the University of Western Australia, and during the year has paid $7,900 for course fees and textbooks.

• (j) Ron is employed as an engineer. He hates his job and is currently studying towards a diploma in accounting. During the year he paid $1,420 in course fees and textbooks.

• For each of the following resident individual taxpayers, state whether there are any amounts that would be treated as deductions. Give reasons.

• (a) Stefan conducts business as a tax agent. He runs his practice from a room at home. The room has a separate entrance and covers 20% of the total floor of Stefan's house. The property costs Stefan a total of $18,000 per year in rent.

• (b) Jo conducts business as a barrister. She rents chambers in the city, but chooses to work 2 days out of 5 from an office that she has set up at home. Jo does not see clients at her home, but her 'office' accounts for 15% of the floor space of her home.

• Costs associated with her home include $12,000 interest on mortgage, $1,500 of rates and $600 of insurance.

• (c) Annice is employed as a lawyer with a large firm. She takes home a substantial amount of work which she completes in a devoted room in her apartment. The room accounts for 24% of the floor space in her apartment.

Annice has calculated the decline in value cost for furniture and equipment in the room and also estimates that 17% of the calls from her home telephone are work related.

During the year she incurred the following expenses:
Rent	$ 15,000
Decline in Value of Computer, Chair and Desk	2,700
Cleaning and Pest Control	1,200
Telephone	2,000

• (d) Don is employed as a teacher. He prepares lessons and marks tests each week from a room at home. While the room accounts for 15% of the total floor space of his home, the room also doubles as a toy room for his children.

During the year he incurs mortgage interest and rates totalling $23,400.

He also incurs a decline in value of $1,800 on carpet and blinds in the room where he works along with electricity costs of $800 (he estimates that 20% relate to the room).

• (e) On 1 July 2017, Russell incurred costs of $1,750 purchasing and establishing a shelf company to operate his take-away food business that is a small business entity.

• (f) On 8 November 2017, Cherene incurred costs of $1,890 purchasing and establishing a shelf company to operate her retail clothing store.

• (g) On 21 June 2017, Mack ceased operating his car detailing business. On 8 September 2017, Mack incurred legal expenditure of $3,680 relating to the winding up of the business. He did not derive any assessable income from the business during the 2017/18 tax year.

• (h) On 18 August 2017, Wilf incurred costs of $27,500 examining the feasibility of establishing a juice bar in Westfarm shopping centre. He subsequently commenced business in April 2018.

• (i) Janelle travelled to Los Angeles for 4 days and nights for work related purposes only. She retained vouchers and receipts verifying that she had incurred $2,800 of travel expenses but had not prepared a travel diary.

• (j) Shaun travelled to Hobart for 4 days and nights for work related purposes only. He had received a travel allowance of $1,000. The reasonable amount determined by the ATO for this travel was $805. Shaun did not retain any records of his costs but spent all of the $1,000 on meals and accommodation.

• Penni Hale is employed as an interior designer. During the 2017/ 18 tax year, she received a gross salary of $75,000 and a car allowance of $3,000 from her employer (PAYG tax withheld of $18,730). Penni has private hospital cover. During the course of the year, Penni used her 1,300cc Kia for a number of trips to clients, suppliers and trade shows. A logbook disclosed 44% business use. Odometer readings show a total of 35,200 kilometres travelled during the year.

• The vehicle originally cost $16,000 and has an opening adjustable value of $13,000. Penni calculates depreciation of the car using the prime cost method over 8 years.

• (a) Determine the maximum deduction available to Penni for car

• (b) Calculate Penni's taxable income for the 2017/18 tax year.

• (c) Calculate tax payable for Penni for the 2017/ 18 tax year.

Fred's daily behaviour before and after entering Australia

The Australian resident is referred as the person who is the resident of Australia for the taxation purpose under “section 995-1 of the ITAA 1936”. The court in “Reid v The Commissioners of Inland Revenue (1926)” considered the meaning of the word “reside” (Kenny 2014). The commissioner expressed that the presence and time are to be taken into account while determining whether the person reside in the place where they spend a portion of their life.

Majority of the individuals work in numerous nations during their careers. They regularly maintain a house in their domicile nation. Nevertheless, for the phase of assignment in Australia, these individuals live and work in Australia (Jover-Ledesma 2014). Their family often accompany them and they become involved in the social activity in Australia.

As understood Fred a British Executive came Australia to set up a branch for his company. Even though his time of stay was not certain he leased his Melbourne residence for 12 months. He even rented out the family home and derived interest from France, however due to ill health Fred returned to UK after 11 months from arriving in Australia.

Referring to “section 995-1 of the ITAA 1936” Fred, is an Australian resident because all the factors reflect Fred is resident in Australia. While ascertaining tax liability in Australia Jim must refer to the necessary provision of double taxation convention where he will discover that his interest from France would not be held assessable in Australia due to the duel resident tie-breaker tests in the convention operating to entirely treat Fred resident in UK within the meaning of the convention.

According to the “taxation ruling of TR 98/17” the period of physical presence in Australia demonstrate that the behaviour of the individual possess the necessary continuity, routine or habit as the question of fact, depending upon the situation of each case (James 2016). On entering Australia, a person may reflect that they do not intend to live in Australia. However, when there is a change in the behaviour reflecting an intention to live in Australia, a person may be treated as the Australian resident from time when such behaviour begins that is consistent with living here in Australia begins. The intention should be ascertained objectively, with regard to all the necessary facts and situations.

As understood in the current situation of Jenny who is a working accountant in Hong Kong enters Australia to spend only three months for travelling and staying three cities. On being offered to take up the position in Australia for nine months Jenny accepted the offer and leased a service executive apartment in Sydney.

Calculation of Mick's taxable income

As Jenny is on the working trip, the time and nature of her stay in Australia in temporary accommodation during April 2017. Jenny’s stay during the income year does not establishes a pattern of continuous behaviour and she should be treated as non-resident for the year ended 30 June 2018.

Later, from the early July the behaviour of Jenny alters. The leasing of a permanent accommodation along with Jenny’s position in Sydney establishes a more settled purpose for being in Australia in comparison to her initial three months in Australia. Jenny should be treated as resident from the time when there is a change in her behaviour and is an Australian resident for the income year of 2018.  

A: Salary received by the employee would be treated as ordinary income under “section 6-5 of the ITAA 1997” because the salary received constitute an income an income from the personal exertion under “section 6-1 of the ITAA 1936”.

B: Compensation received by the injured worker for the loss of salary because he was not able to work for four weeks would be included in the assessable income of the taxpayer under “section 15-2 of the ITAA 1997” as the ordinary income (Grange, Jover-Ledesma and Maydew 2015). This is because the compensation received is in respect of the employment to the worker.

C: Christmas gift received by the daughter from her mother cannot be treated as ordinary income. The court in “Scott v FCT (1966)” held that personal gifts are not treated as income.

D: Proceeds from the sale of copyright to a book will be treated as assessable ordinary income under “section 6-5 of the ITAA 1997” because the payment is received by the recipient for the transfer of all the rights associated to the copyright in the books.

E: Proceeds from selling the copyright of book where the recipient is carrying on the business of writing books and selling the copyright would be included for assessment as ordinary income under “section 8-1 of the ITAA 1997” (Douglas et al. 2014). The proceeds of such sale constitute assessable income in the hands of the recipient in agreement with the “subsection 25 (1)”.

F: Profit on sale of shares which were held for number of years would be included into the assessable income of the taxpayer under the ordinary meaning of “section 8-1 of the ITAA 1997”.

G: Unemployment benefits that is received by the unemployed person from the government would not be included into the assessable income within ordinary meaning of “section 6-5”.

Annice's expenses for work related calls and furniture

H: Award receive by the freelance photographer for his photography would be treated as ordinary income under “section 8-1 of the ITAA 1997” because the amount of $4,000 is related to the taxpayer income generating activities.

I: Payment received from the sales of pottery as the part of hobby would not be considered as ordinary income since the amount derived is from the hobby and hence non-assessable.

J: The sum of $200 received for the best painting by the local art exhibition would be held as ordinary income because the amount received holds sufficient relation with the income producing activities of the taxpayer.     

A: The receipt of gross salary by Frida will be treated as the assessable income within the ordinary meaning of “section 8-1 of the ITAA 1997”.

B: The unused annual leave for the year 2017/18 constitutes a non-assessable income under “section 15-2 of the ITAA 1997” (Barkoczy 2018). The annual leave received by Fried would not be included for taxation purpose.

C: The winnings from the Powerball syndicate by Fried would not be held as assessable income because it is a mere windfall gain and does not has the character of income.

D: Receipt of cash prize by Frieda for employee would be included for assessment. Referring to “Kelly v FCT” receipt of award that is incidental to work and employment is an assessable income (Kenny, Blissenden and Villios 2018). The cash receipt of cash prize by Frieda is incidental to her work and employment.  

E: Receipt of holiday to Fraser Island would not be included in the assessable income. The holiday received constitute a non-cash benefit having nexus with the personal services which is non-convertible to cash and hence not an ordinary income.

F: Frieda received a wedding gift from her work colleague that valued $750. Citing “Scott v FCT (1966)” personal gifts are not treated as income and not included for assessment purpose. The wedding gift received by Frieda is a non-assessable income.

G: Frieda received a reimbursement of the self-education costs that is incurred for the logistics course. The amount received by her employer would be treated as assessable income for assessment purpose.

H: The rental income received from the rental apartment by Samantha Storey would be treated as assessable income within the ordinary meaning of the “section 6-5 of the ITAA 1997” (Sadiq et al. 2018). The rental income constitutes periodic receipts for Samantha.

I: Samantha reported the receipt of $700 as the reimbursement by tenants for cleaning carpets. The amount received by Samantha would be held taxable and would be included in the assessable income.

Factors determining Australian residency

J: Insurance pay-outs that is received for the items that is used by the taxpayer to generate income should be included for assessment purpose. The receipt of insurance pay-out by Samantha would be treated as assessable income for assessment purpose.     

Computation of Mick Taxable Income for 2016/17

Computation of Taxable Income
In the books of Mick Viduka
For the year ended 2016/17
Particulars	Amount ($)	Amount ($)
Assessable Income
Australian Sourced Dividend Income
Fully Franked Dividend from ABC (Net)	3920
Gross Up Franking Credits	1680	5600
Un-franked Dividend from DEF Ltd		1800
Un-franked Dividend from PQR Ltd		700
Total Taxable Income		8100

Computation of Mick net tax payable or refundable for 2016/17:

Computation of Taxable Income
In the books of Mick Viduka
For the year ended 2016/17
Particulars	Amount ($)	Amount ($)
Assessable Income
Australian Sourced Dividend Income
Fully Franked Dividend from ABC (Net)	3920
Gross Up Franking Credits	1680	5600
Un-franked Dividend from DEF Ltd		1800
Un-franked Dividend from PQR Ltd		700
Total Taxable Income		8100
Tax on taxable Income		Nil
Less: Franking Credit		1680
Total tax refundable		1680

A: The payment of electricity bills by Ernie for his business premises would be liable for general deduction under “section 8-1 of the ITAA 1997”.

B: The payment of home electricity bill is non-deductible under the negative limbs of “section 8-1 (2) of the ITAA 1997” because it is an outgoing of domestic nature.

C: Jamie under the simplified depreciation rule can instantly write-off the cost of computer since the cost of computer is less than the threshold limit of $20,000.

D: Fiona reports the payment of $750 for home bill however she estimated that 60% of the calls were made for business purpose. Therefore, Fiona can claim 60% of her home phone bill as deduction under “section 8-1 of the ITAA 1997”.

E: Stan reports payment of $200 for cleaning his home though Stan argues he is not able to run his business properly if he cleans his house but the expenses were not incurred in gaining assessable income. Therefore, under “section 8-1 of the ITAA 1997” Stan would not be allowed to claim deduction.

F: Rita pays a sum of $12,000 as child care fees to enable her to carry her full time job. Referring “Lodge v FCT (1972)” the child care fees will not be allowed for deduction since it is not incurred in the derivation of assessable income (Morgan, Mortimer and Pinto 2017).

G: Tara incurs a traveling expenses by train to travel from her home to work. Referring to “Lunney v FCT (1958)” travel between home and the place of work by Tara is not allowed for deductions.

H: Nicole reports a payment of $6,000 to her payments. The expenses will not be considered as allowable deduction under “section 8-1 of the ITAA 1997” since it is a private or personal expense.

I: Citing the case of “FCT v Finn”, Stu employed as the legal assistant would be allowed to claim deduction for self-education expenses under “section 8-1” because the expenses incurred were to maintain or increase his occupation skills (McCouat 2018).

J: Ron will not be allowed to claim deduction for the self-education expense under “section 8-1” because the expenses incurred not related to his occupation or skills.

Jenny's case as a non-resident and later as a resident

A: Referring to “Swinford v FCT” Stefan will be allowed to claim deduction for rent under “section 8-1” as the home office expenses up to 20% of floor area that has the character of “place of business” because the expenses were incurred in derivation of assessable income (Taylor et al. 2018).

B: Jo will be denied deduction under “section 8-1 of the ITAA 1997”. Referring to “Handley v FCT” Jo being a barrister also maintained his own chamber or office in town and hence no deduction will be allowed.

C: Annice will be denied for the expenses that were incurred from her home related to her employment. Annice took the work to home for convenience purpose and not because of compulsion. Referring to “FCT v Forsyth” the expenses incurred by Annice were not relevant or incidental in derivation of assessable income.

D: Don will be denied deduction under “section 8-1” for mortgage and rates because worked from home for convenience purpose. Citing “FCT v Forsyth” the expenses were not relevant or incidental in derivation of assessable income (Woellner et al. 2014).

E: Russell will be denied deduction under “section 8-1” for purchasing and establishing a shelf company. Referring to “FCT v Softwood Pulp & Paper” the expenses incurred by Russell were preliminary to the commencement of income earning activities and hence non-deductible (McCouat 2018).

F: Cherene will be denied deduction under “section 8-1” for purchasing and establishing a shelf company of retail clothing. Referring to “Goodman Fielder Wattie v FCT” the expenses incurred by Cherene were preliminary to the commencement of income earning activities and hence non-deductible.

G: Mack will be allowed to claim deduction for the legal expenses incurred for the cessation of the business under “section 8-1 of the ITAA 1997”. Citing “AGC Ltd v FCT (1975)” the expenses incurred for business that were formerly carried on by Mack and hence it is tax deductible.

H: Wilf will be denied deduction for the cost of preliminary expenses under “section 8-1 of the ITAA 1997”. Referring to “FCT v Softwood Pulp & Paper” the expenses incurred by Wilf were preliminary to the commencement of income earning activities and hence non-deductible (Morgan, Mortimer and Pinto 2017).

I: Janelle will be allowed to claim deduction under “section 8-1 of the ITAA 1997” for the travel purpose because the expenses were incurred in derivation of assessable income.

J: Shaun will not be allowed to claim deduction for the sum of $1000 that was spend on accommodation because the amount was entirely paid by his employer. As he did not maintained any record, no deduction will be allowed to Shaun under “section 8-1 of the ITAA 1997”.

Deduction for car expenses:

Operating cost method:
Deductible value of Car
Particular	Amount ($)	Amount ($)
Petrol	2800
Deemed Depreciation	1625
Loan Repayment Interest	600
Tyres	430
Car Washes	200
Parking meters	400
Taxi fares to client	80
Registration & Insurance	1100
Total operating cost		7235
Proportion of use for private purpose:
Total kilometre run	35200
Work related	15488
Private purpose related	19712
Percentage of private use	56%
Maximum deductible Car Expenses		4051.6

Calculation of Depreciation
Prime Cost Method
Particulars	Amount ($)
Base value of car	$13,000.00
Days Held	365
Effective Life	8
Deemed Depreciation	$1,625.00

Computation of Penni's Taxable Income & Tax Payable
For the year ended 2017/18
Particulars	Amount ($)
Assessable Income
Gross Salary	75000
Car Allowance	3000
Total Assessable Income	78000
Allowable Deductions
Total Taxable Income	78000

Computation of Penni's Taxable Income & Tax Payable
For the year ended 2017/18
Particulars	Amount ($)
Assessable Income
Gross Salary	75000
Car Allowance	3000
Total Assessable Income	78000
Allowable Deductions
Total Taxable Income	78000
Tax on Taxable Income	16897
Add: Medicare Levy	1560
Total tax payable	18457

References:

Barkoczy, S. 2018. Australian Tax Casebook 2018 14e ebook. Melbourne: OUPANZ.

Douglas, H., Bartlett, F., Luker, T. and Hunter, R. 2014. Australian feminist judgments.

Grange, J., Jover-Ledesma, G. and Maydew, G. 2015. Principles of business taxation.

James, S. 2016. The economics of taxation.

Jover-Ledesma, G. 2014. Principles of business taxation 2015: Cch Incorporated.

Kenny, P. 2014. Australian tax.

Kenny, P., Blissenden, M. and Villios, S. 2018. Australian Tax 2018.

McCouat, P. 2018. Australian master GST guide.

Morgan, A., Mortimer, C. and Pinto, D. 2017. A practical introduction to Australian taxation law.

Sadiq, K., Coleman, C., Hanegbi, R., Jogarajan, S., Krever, R., Obst, W., Teoh, J. and Ting, A. 2018. Principles of taxation law.

Taylor, C., Walpole, M., Burton, M., Ciro, T. and Murray, I. 2018. Understanding taxation law.

Woellner, R., Barkoczy, S., Murphy, S., Evans, C. and Pinto, D. 2014. Australian taxation law select.