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LAWS5065 Taxation Law

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1. With reference to the UK Australia Double Tax Agreement explain:

a. the meaning of the term Permanent Establishment.
b. how the business profits of an enterprise incorporated in the UK are taxed in Australia.
c. whether contracts made through an independent agent would result in a Permanent Establishment
2. Andrew McSwington is a highly regarded MLB prospect born in Adelaide.  During the Australian off season he first travelled to Mexico to play in the Fall League for 2 months and then went to America to play in the minor leagues for 15 months.  He signs the contract stipulating he is to be paid $145 000 for the 15 months in Adelaide and joins the minor league team shortly after. The contract states he is to be paid monthly into a bank account in the Turks and Caicos Islands
Andrew decides to purchase a home in America to use it as a base during the home and away series and rent it out for the remainder of the income year when he returns to Australia.
Discuss with reference to relevant case law:
a. Whether Andrew is a resident of Australia for tax purposes
b. The source of the $145 000 paid for his baseball skills
c. Whether he is liable for taxation in Australia on the $145000 for his baseball skills
d. Whether Andrew is liable for tax on the rental income received from America during the balance of the year
3. What is the “first strand” of the decision in FC of T v The Myer Emporium Ltd 87 ATC 4363? Did the courts apply the first strand in Westfield Ltd v FC of T 91 ATC 4234 ?  Compare and contrast the decisions in FCT v Myer and FCT v Westfield and suggest an explanation for the difference in the Court’s decisions. 
Comment on whether the decision support the distinctions made between income and capital in the Australian taxation system.
4. Dale is an Australian resident tax payer who has had the following CGT events during the year.  She owns all these assets herself.
  • She sold a rental property purchased on 15/5/96 for $180 000 on 27/3/14 for $340 000
  • She sold a stamp she picked up at a garage sale for $5 on 15/7/13 on 25/8/13 for $25000.  Dale has an expert knowledge of stamps and recognised it as a very rare stamp she could quickly sell to a collector.
  • She sold a boat acquired on 1/11/04 for $17 500 on 1/4/14 for $9 000.
  • She sold 500 shares acquired on 1/4/12 for $10 000 on 1/4/14 for $2 000
  • She sold a diamond ring acquired on 5/2/00 for $750 on 1/5/14 for $4000
  • She sold 1000 shares acquired on 3/4/84 for $10 000 on 1/4/14 for $2000
  • She sold 2500 shares acquired on 25/5/96  for $18 000 on 1/6/14 for $18 750


With reference to all relevant legislation, calculate Dale’s net capital gain and explain its tax assessment.

You must reference each step in the process to the relevant legislation.  The numbers in the calculation will not be sufficient.

5. a. With reference to Softwood Pulp and Paper v FCT 1976 explain whether a deduction is available for interest paid on a loan during the preparatory stages of a business.

In your opinion when would a business advance from a preparatory stage?

b. With reference to Ronpibon Tin NL v. Federal Commissioner of Taxation (1949) 78 CLR 47 explain the importance of the ‘incidental and relevant test” in determining whether interest paid on loans in deductible.
c. With reference to FC of T v. Brown 99 ATC 4600; (1999) 43 ATR 1 explain whether interest paid on loans can be deductible after business activities have stopped
6. In your opinion do you think investors should be allowed a full deduction for the interest incurred on loans to acquire rental properties?
In your discussion you should consider issues of equity and the possible effect on home prices.
In your discussion you must utilise commentary made by AT LEAST 3 observers in this area, and make at least 1 suggestion as to how the government should respond to concerns raised in this area.
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