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Concept of Assessable Income

1.Describe the concept of assessable income under Australian tax law, addressing ordinary income, statutory income, exempt income and non-assessable non- exempt income. Reference statutes and/or cases (using at least three Australian tax rulings and determinations and/or cases interpreting relevant statutes).

2. After describing the Australian income tax system in the above question, compare the taxation application of the Australian income tax to a specific application of either the U.K. or the U.S. income tax. For example, compare a particular application of some aspect of tax policy (fairness, efficiency, simplicity, tax reform, governmental incentives or other aspect of your choosing) to the taxation of a specific financial transaction or service taxed or exempt under relevant income tax laws.

3.In the following fact pattern, categorise each payment for income tax purposes as set forth in Australian income tax law. You must cite statutes, rulings and determinations, and/or relevant cases. Do not cite to the textbook. Assume all references are to tax year 2016/2017 (July to June.)

Abby is an internationally acclaimed Australian athlete. She's been recognised as athlete of the year by various organisations within Australia and internationally. Abby has competed in a number of sports, but is most well known for her running skills and participation in the Australian Ninja Warrior competitions.

Abby works at a running shoe store. Her salary in 2016/2017 was $50,000 (assume no superannuation in this amount.) Abby also travels for running competitions. She received a governmental grant in July for $8,000 for training support and to cover travel from her local governmental entity, requiring her to give three local talks to schools. She raced eight times between August and March as follows:

Melbourne in August, she won $4,000 Hawaii, USA in September winning $3,000 Sydney in November, winning $2500
New Caldonia in January, winning $4200 Cairns in February winning $5,000 She also made weekly TV appearance in Sydney, and received $10k (for the year) as a commentator for Australia Ninja Warrior.

4. The Australian Government’s Emissions Reduction Fund provides incentives for Australian businesses and others to adopt practices to reduce greenhouse gas emissions. The white paper discussing the current Emission Reduction Fund legislation states the following: The Government believes there is a better way to reduce emissions than by imposing a tax that increases energy costs for businesses and households. That is why the Government is repealing the carbon tax and replacing it with the Emissions Reduction Fund. Rather than increasing prices and eroding Australia’s competitive advantage, the Emissions Reduction Fund’s incentive-based approach will support Australian businesses to lower their energy costs and increase their productivity, while at the same time reducing Australia’s emissions.

Analyse how this policy might or might not encourage compliance with the Kyoto Protocol and shifting governmental priorities to incentivise business behaviours, using one or more aspects of Australia’s Future Tax System report for tax reform. In discussing the policy, analyse specific regulatory materials, including the Kyoto Protocol, the Emission Reduction Fund, and at least three legal secondary sources which discuss some aspect of tax policy (fairness, efficiency, simplicity, tax reform, governmental incentives or other aspect of your choosing).

Concept of Assessable Income

1: There are large amounts that is received by an organization would be considered as the assessable income. Assessable income represents any sum which is received would be treated as ordinary income given the income is earned from providing personal services, income from the property and earnings from carrying on of the trading activities. The assessable income includes the amount that is specified under the income tax law as the income. However, the assessable income does not include the amount that is stated in the income tax law as the exempted income or the non-assessable, non-exempt income. Assessable income comprises of receipts from the trading with the non-members and income from the sources comprises of sources that are outside the organization.

The assessable income comprises of the ordinary income and statutory income. The term ordinary income does not have any definition under the tax Acts. The meaning of this concept is obtained from the case law and it is based on the principles that emerges from the decisions. The role of tax legislation is to take into the account the sum of ordinary income as the taxable given the sum satisfies the criteria that is determined by the application of case law principles. The sum would be considered in the ordinary income under the “section 6-5 of the ITAA”.    

Ordinary income has been explained under “section 6-5 of the ITAA 1997”. As per the “section 6-5”, usually most of the earnings that is earned by the taxpayer is held as ordinary income. The judicial concept of income as per the ordinary concepts is explained through a case law approach. In “Scott v CT (1935)” the court held that earnings should not be observed as the word of art and necessitates implementation of the required principles to determine the treatment of receipts as income with respect to the ordinary concepts.

The ordinary income is included into the taxpayer’s taxable income under “section 6-5 of the ITAA 1997”. The statutory income comprises of the assessable income because of the actions of specific legislation that are contained in the acts. It becomes obligatory for the “Federal Commissioner of Taxation” to represent how the legislation is applied to classify the amount as the statutory income. Frequently, the amount of statutory income fails to meet the concept of ordinary income and hence it would not be treated for taxation purpose without any particular legislation. Once the legislation has been implemented and ascertained the sum to include into the statutory income, the sum calculated under the legislation is included in the assessable income under the “section 6-10”.

Statutory income is income stated as the assessable income under the numerous provisions stated in the tax assessment acts. Statutory income is taken into account before the implementation of ordinary income as the amount that must be assessed under the specific provision of “section 6-25 (2)”. The items of statutory income consist of income as per the ordinary concepts that is referred as ordinary income. As the term ordinary income is particularly not defined by the legislation in the Act, taxpayers usually remains dependent on the court and case law approach to explain its meaning.

Comparison of Australian Income Tax with UK or US Income Tax

The reconciliation rule defined under “section 6-25 (2)” explains that provided the sum is both the ordinary and statutory income, the statutory rules of income succeeds except there is any opposing intention prevails. In spite of the broad intention stated under “section 15-2” there has been only a restricted role since it is applicable to a sum that are ordinary income or the fringe benefit. Similarly, the employee share benefits is not held for taxation as the ordinary income instead a separate statutory regime is available. On the other hand, the numerous lump sum payments which is received by the employee for the termination of employment particularly the redundancy payment are not treated as statutory income.

There are two situations when income is exempted from the tax assessment. First, this includes the situation when the sum of statutory or ordinary income is obtained by the entity that are exempted under “section 11-5 of the ITAA 1997”. Secondly, the sum of listed exempted income that is received by the entity is taxed under “section 11-15 of the ITAA 1997”. The concept of exempted income is defined under the “section 6-20 of the ITAA 1997”. The division 11, consists of “subsection 11-1A -11-15” comprises of lists of exempted income that is received by the entity is assessed for taxation purpose under “section 11-15 of the ITAA 1997”.

As per the “section 11-15” it lists down the forms of income that are exempted from taxation. Under “subparagraph of 23(g)(v)” of the “Tax Determination 93/190” explains that income by society or any association that is created for community services purpose which is not carried on for purpose of profit or gains the individual members would be exempted from taxation.  

As evident under “section 6-23” recognizes the fourth basic income category is the non-assessable non-exempt income, which is neither held for assessment nor it is exempted. This represents the class of income that is not held for assessment but is not considered as exempted income under circumstances where the exempted income is taken into the considerations for particular purpose namely in computing and deducting the tax losses under the “Division 36”. The non-assessable non-exempted income is held as untaxed income and it is considered as if not an income. The classification of NANE was introduced during the year 2003 to avoid any overlap between the taxable and the exempted earnings. An element of income is only considered taxable, exempt or non-assessable non-exempt income and hence cannot fall in greater than one category.

On noticing that the sum is not the ordinary income it is not assessed for taxation purpose since it does not meet the conception of stated under the Australian jurisdiction. This is because it is not the type of income that is captured by the taxation law which is not to assessment under “section 6-15(1)”. The income might not be particularly treated as exempted or NANE income since it fails to satisfy the criteria of section 6-5 and section 6-10 which is not taxable.

2: The reformation procedure in Australia has contributed towards the significant flexibility of the Australian economy that has experienced continuous progress following the Asian financial crisis in 1997-98. The treasurer of Australia asked the review panel to take into the account the retirement income system. The review panel highlighted the issues that it considers to be vital in designing the retirement income system since it is related to the issue of designs of retirement income system based on the request of the Treasurer’s letter. Later the retirement income system was changed substantially to meet the socioeconomic challenges because of the ageing population of Australia.

The review panel in its consultation paper have set out the challenges and opportunities which would figure the future tax system of Australia. This includes the rise in globalization and the evolving pattern of global economic activity. It also includes the changes in the patter of workforce participants and improving the procedure of policy creation and its management. While there are challenges in opportunities that is associated to the entire system of tax transfer, there are many that are relevant to the future income and retirement system of Australia. Australia has supported the standards of living for the retired particularly those that save for their retirement. The system of retirement income has robust association with the demographic changes. It creates an impact on the sustainability system of retirement income and reflects the need for making sure that it attains a reasonable living standard for the increasing amount of persons that are not anymore working.

Categorization of Income for Tax Purposes

The retirement income system of Australia is surrounded by three pillars with government funded age pension is backed by superannuation guarantee and voluntary saving. This system makes sure that the support is provided to those that are not anymore working. The voluntary savings pillar allows the person to choose the amount they can save and vehicle of investment in which they would save, to attain higher retirement income. The compulsory and voluntary pillar of savings enables individuals to self-fund the higher retirement expenses than that is provided by the Age Pension. Under the Australian system the age pension offers guarantee income whereas the income produced from the second and third pillars is dependent on the sum invested and the returns yielded from such investments.

Majority of the submissions have endorsed the three pillars but several have proposed changes namely increasing the extent of obligatory savings and changing the way the pillars are unified. The recent change in the SG to 9 per cent signifies that the SG would impact those that are retired. For instance, living standard of those that are retired would improve considerably from the transition to matured SG system after 35 years of work. On the other hand, the average replacement rate in UK is presently 84 for those that is 20 years old making the regular wage and retiring on attaining the suitability age of pension.

The transition to matured SG system would change the system from one where the superannuation complements the pension age to the one that supplements the superannuation age of pension. Identical to the Australian pension, UK provides the taxpayer with the funded minimum superannuation income that are characteristically uttered as the proportion of average wages. Unlike Australia, UK has national social insurance system that provide guaranteed retirement income and can be funded by the individual contributions and tax on wages. The guaranteed retirement earnings are usually an after-tax replacement of a people prior to retirement income, depending upon the eligibility criteria namely the time in their labor force and period of contributions. UK finance this element with the help of obligatory defined contributions arrangements while in Australia this is done with the help of Superannuation Guarantee.

Considering the equity of the assessment provisions in Australia the savings that are invested in the superannuation is usually not levied at the separate depositor’s personal tax rate. As an alternative superannuation contributions and pays is levied at the flat ratio of 15% inside the fund. The structure of taxation implies that the superannuation concession is higher for the individuals on the higher personal tax rate whereas for individuals on the lower personal tax rate that receives less allowance on their contributions.

Individuals that earn higher income is most likely to gain advantage to a large degree from the tax exception derived from the assets that supports the superannuation earnings streams. As they have greater assets, they are more probable to live long on the regular basis than the persons belonging from the lower earnings group. The tax concession provides benefit to those that earn higher income and this can be lowered up to the extent of higher income groups. The tax concession provides benefits to those that earn higher income but it is reduced to a degree by the supplementary constituents of superannuation revenue system.

Analysis of Emissions Reduction Fund Policy

Conclusively, there are certain submissions that discusses the need of simplifying the manner in which retirees interact with the system of tax transfer. There ae some suggestions that claim that enhancing the economic literateness of the household is vital especially in the administration of the retirement income. The elimination of tax on the superannuation welfares has helped in simplifying the benefits related to taxation. Additionally, taxpayers can make both before and after tax superannuation contributions. The before tax contributions are considered as deductible whereas the after tax contributions are not subjected to deduction but might be considered appropriate for the government retirement contributions.             

3: As stated under “section 6 of the ITAA 1936” income obtained from the individual exertion or earnings from the private exertion denotes the income that comprises of the earnings, salaries, wages, commissions, payments, gratuities that is received in capacity of the employee in respect of the amenities provided or proceeds from the business. An item of income nature under “section 6-5 of the ITAA 1997” is obtained when it comes home to the taxpayer.

In the current case it is understood that Abby is employed at a store that sells running shoes. Abby was also paid salary during the year 2016/17 that amounted to $50,000. As held in “Dean v FCT” the taxation commissioner held that the retention payments that was made to the employee for being employed for a period of 12 months after the takeover was considered as taxable income. The sum of salary that is paid to Abby would be treated assessable as ordinary income under the ordinary concept of “section 6-5, ITAA 1997”. The amount was obtained from the personal effort and hence it constituted an income from the personal exertion that attracts tax liability.  

As per the ATO there are certain specific payments, grants or subsidies that an individual receives from government would be taken into the consideration as the taxable income. These includes the grants that is received by an individual under the apprenticeship incentives program or the subsidies received for running the business. As evident in the current situation, Abby travels for the running competition and received a government grant that amounted to $8000 for training support and covering the cost of local travel. The sum of $8,000 that is received by the government constitute government grant and these amount would be included for the assessment purpose.

In the later instances it is noticed that Abby reported eight receipts in the form of prize from race across different parts of world during the income year of 2016/17. The court of law “Moore v Griffiths (1972)” held that mere prize is not treated as earnings though it might be treated as income given that there is a sufficient relation with the revenue producing activities of the taxpayer. If a receipt is capable of being represented as the product of revenue generating activities that might be considered as determinative of income character.

Evidently the court in “Kelly v FCT” found that the professional footballer received award from the Channel 7 for being the fairest and the best player. The taxation commissioner held the amount received by the taxpayer was having the nature of income which was related to his work and service by the club and was also associated to the application of his skill. In another example of “FCT v Stone” the taxpayer was the policewomen and javelin thrower that made approximately $39,000 in the form of salary with greater than $180,000 in the form of endorsements. The sum of prize money was assessable because the taxpayer was found to be carrying on the business as the professional athlete and the money was considered as income.

Similarly, in the case of Abby, it can be stated that she was carrying on the business of professional athlete since the receipt can be represented as product of income generating activities which should be considered as the determinative of income character. Citing the case of “FCT v Stone” it can be stated that the Abby beside the employment, was also carrying on the business of professional athlete and the sum will be considered as assessable income under the ordinary concepts of “section 6-5 of the ITAA 1997”.

As per the “taxation ruling of TR 1999/17” payments received by a person in relation of or in association with the employment would be treated as assessable income. The amounts will be considered taxable if the payments or the benefits that is received is in relation of or in association with the services provided. The “taxation ruling of TR 1999/17” explains that amount that are revenue in nature or receipts of benefits in the form of prize and awards for carrying on the business of participating in the sport are held taxable. This is because it results in the exploitation of personal skills in the commercial manner with the objective of gaining reward. As evident in the current situation of Abby, she received a sum of $10,000 for weekly TV appearance and working as commentator. Payments which is received by the taxpayer or making a public appearance, product promotions and endorsements given the receipt is related to the employment contract and hence taxable as income.

As held in the case of “FC of T v Kelly” the employee of the football club obtained a sum of $20,000 in the form of award from the unrelated party for being voted as the fairest player all through the season. The commissioner of taxation held that the amount was taxable as income for the sportsperson since it was associated to their employment as the footballer. Evidently in the case of Abby, making TV appearance and receiving a sum of $10,000 for being a TV commentator during the year would be considered as assessable income within the ordinary concept of “section 6-5 of the ITAA 1997”. The money received by Abby is in relation of her making herself available for TV. Consequently, the receipts are taxable in the hands of Abby.

4: Over the last 30 years the system of Australian taxation and transfer have underwent a continuous process of reformation in relation to the change in the policy context and the problems are recognized by using the current policy settings. An active role has been played by Australia at the global level to address the problems relating to climate change. During the year 1992 Australia became the party of UNFCCC and took a large number of commitments in agreement with its requirements. This comprises of accountability of formulating and publishing the national programs with the measure of mitigating and facilitating the adoption of climate change by cooperating with the parties that are in practice to lower down the emission of the greenhouse gases. Unlike the developed nations, Australia has undertaken added responsibility so that it can reduce the emission and safeguard the greenhouse gas reservoirs and sinks. Australia has signed the Kyoto Protocol to UNFCCC during 1998. The commonwealth government has of late, reflected that it may not ratify the Kyoto Protocol unless US is engaged in it.

On analysing the Australia’s engagement with the Kyoto Policy, it can be stated that the policy would encourage compliance and government would prioritise to incentivise the business behaviours. The commonwealth has undertaken cooperative approach so that it can meet the responsibility of Australia towards the UNCFFF. The government of Australia has also strategized by outlining the plans to lower down the emission of greenhouse gases by promoting community participation, exploration and education. The strategy emphasis on the action of limiting the Australia’s greenhouse gases with respect to the requirements of Kyoto Protocol.

According to several researchers, the cooperative agreements has several advantage for the commonwealth parliament, provided its restricted constitutional powers in several areas require the regulation for the application of policies relating to climate change namely the energy and land clearing. The Australia’s national greenhouse gases strategy proposes the ideologies, strategies, goals and measurers in such areas. However, the national greenhouse strategy does not create a legally binding obligations. The administration of the NGS is executed by the higher level group of senior officials from the Territories, state and commonwealth that are accountable for the council of Australian governments.

The agreement hardly creates any legally binding obligations. There are no guarantees that the NGS would be applied by the states and seemingly only political pressure can be implemented to influence the state governments so that it can take the required steps mandated by the NGS. However, by using the cooperative approach it is feasible for the commonwealth parliament to introduce the legislation so that it can impose the obligations under the Kyoto Protocol. The High Court in “Commonwealth v Tasmania and Richardson v Forestry Commission” undertook the wide approach to interpret the powers of external affairs under section 51 of the Australian Constitution and passed its verdict by stating that commonwealth parliament can legislate to impose any overseas obligations that are assumed as bona fide under foreign treaty.

The target of Australia following the ratification of Kyoto Protocol would be to restrict its emission of greenhouse gases by 8%. However, this target would be difficult for Australia to attain. It is probable that Australia would remain dependent on the three mechanism given in the Kyoto Protocol to help in attaining its target emission level. The mechanism would encourage compliance with the Kyoto Protocol by investing in the projects and crediting the emission reduction targets for moving towards emission reduction targets.

According to several researchers there are numerous modelling studies that proposes to reflect that reduction in emission would result in damage to Australian economy. Majority of the studies are flawed fundamentally that are deprived of any actual value. They generally presume that the price mechanism would reduce the emission, despite the fact the majority of the energy usage is price sensitive. Researchers have assumed that the usual business would result in continuous expansion for wasteful usage of fossil fuels based on the conditions that such kind of development is neither essential nor needed. Majority of the studies have computed that only the negative economic impact of raising the prices of fuels without making any attempt to evaluate the positive impact. Therefore, the economic welfares of measures relating emission reduction appears to be in the identical magnitude of cost.

Despite of the obvious distortions, majority of the model predict a minimal negative impacts. They are unable to determine the obvious negative impact on the Australian economy particularly in the agriculture and tourism, given the anticipated change in climate takes place because of undermining the Kyoto protocol. Furthermore, the researchers have also failed to assess the economic cost of Australia being left out from the emission trading, Joint Implementation and Clean Development Mechanism where all the measures under the Kyoto Protocol are set up for participant nations and all the measures of Australian companies are anticipated to yield financial profit. It appears clear that signing the Kyoto Protocol agreement would promote compliance and would also result in more economic benefit than damages.

The Kyoto Protocol lay down the flexibility mechanism that would allow Australia to impose projects which would lower the emission and absorb the carbon with the help of afforestation or reforestation activities. Kyoto Protocol mechanisms is promoting efficiency by implementing an emission reduction project that improves the removals by sinking with another territory on the road to meeting its own target. In summary, the quantified emission limitation and reduction commitments under the Kyoto Protocol requires Australian to constantly make effort towards the reduction of greenhouse gas emissions. In spite of the fact that Australia is not obliged to ratify the Kyoto Protocol but it is committed to collaborate and be directed by the principles stated under UNFCCC. The emission reduction fund would help in improving and expanding the soil carbon method. Furthermore, it would permit the suitable activities and lower down the cost of carbon measurement.  


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