Taxation Tax Avoidance Includes Transactions

Question: Describe about the Taxation for Tax Avoidance Includes Transactions . Answer: 1. a) Reason for enacting section 260 of the ITAA 1936 Tax avoidance includes transactions that are undertaken with the aim to reduce the tax liability without committing any taxation or criminal offence. Tax avoidance can be conducted in multiple ways such as reducing assessable income, increasing the deductions, manipulating the structure of the business, manipulating the nature and type of transactions[1]. This tax avoidance are addressed by imposing various legislative limitations and provisions. The Income Tax Assessment Act 1936 is enacted by the parliament of Australia and it is one of the important legislation under which the income taxes of the individuals and the entities are calculated. In the society, tax is generally considered as a burden and many individual and entities seek legal means to avoid or reduce tax liability[2]. Therefore, section 260 of the ITAA 1936 is important because it provides general provisions relating to anti avoidance of tax. The section 260 of the ITAA 1936 states that the arrangement, contract and a greement that either is made orally or by writing is void if it is made for the following purpose: In order to alter the incidence of the income tax; In order to mitigate any person from the liability to pay tax or provide return; In ordered to avoid, evade and defeat any law that is imposed by this act; In order to prevent the implementation of the act; The section 260 in simple words make void any agreement, contract or arrangement that is made for the purpose avoiding tax. The section 260 along with the section 25(1) and the section 51(1) is very important for the tax planner. Therefore, from the above discussion it can be seen that the section 260 of the ITAA 1936 is the most important section that prevents avoidance of tax and helps to maintain the tax equity[3]. Therefore, it can be concluded that the reason for enacting section 260 is to provide deterrence to tax avoidance. Shortcomings of Section 260 of the ITAA 1936 The section 260 of the ITAA 1936 is a very simple and plain anti avoidance section. This has lead to a boarder interpretation and application of the section then it was initially intended. The shortcomings that ultimately lead to the replacement of this section as a principle anti avoidance rules are given below: Literal interpretation of the section The high court of Australia has always adopted a literal approach in the interpretation of the tax statues. This approach of law interpreting the provisions of the law came from the former Chief Justice Sir Owen Dixon of the High court of Australia[4]. However, in the recent years the literal approach of interpreting law has come into questioning due to its impact on the tax decisions. In 1921 in the case of Federal Commissioner of Taxation V Purcell, the CJ Knox said that section 260 of the ITAA 1936 if interpreted literally would apply to every transaction that has an effect of reducing the taxable income of the taxpayer. In the case of Federal Commissioner of Taxation V Westraders Pty limited, it was said in the judgment that if the provisions of the tax acts are applied literally then it is an open invitation to artificial and contrived tax avoidance. The judgment of the Cooper Brookes Pty V Federal Commissioner of Taxation 81 is a hint that Australian judiciary is moving away fr om the literal interpretations approach[5]. The other cases in which the judgments are made not based on literal interpretation of statue are Federal Commissioner of Taxation V Liberty 81, Ure V Federal Commissioner of Taxation 81, Deane and Croker V Federal Commissioner of Tax 82[6]. The principle of Choice In accordance with the principle of choice if the provisions of the act gives the taxpayer the two alternatives then in such cases the taxpayer can choose the alternative in which the liability to pay tax is less without worrying about the application of section 260. In the case of W P Keighery V Federal Commissioner of Taxation, it was held that the section 260 is not applicable to companies that have rearranged its operation to become the public company in order to avoid the private company taxation under Division 7[7]. The choice principle was first mentioned in the case of Clarke V Federal Commissioner of Taxation (1932). This principle of choice was approved in the subsequent cases of Federal commissioner of Taxation V Casuarina Pty ltd 71, Mullens V Federal commissioner of Taxation 76 and Cridland V Federal Commissioner of Tax 77[8]. In the Cridlands case, the principle of choice was extended and it was stated that the section 260 would not apply in cases where the taxpayer spe cifically adopts a particular option in which the provisions bestows fiscal advantage to the taxpayer[9]. The choice principle is the most important factor that destroyed the effectiveness of the section 260. In the Cridlands case the section 260 was rejected as the judgment stated that the Section 260 is a difficult provision inherited from earlier legislations and long overdue for reform by someone who will take the trouble to analyze his ideas and define his intention with precision before putting pen to paper. This judgment virtually rejects the application of section 260 and the principle of choice has destroyed the section 260[10]. Section 260 is a provision that does not have the power to reconstruct The section 260 had a serious limitation that it does not authorize the commissioner to make hypothetical reconstruction. The application of section 260 would not affect the incidence of tax unless there is a situation of antecedent transaction. Therefore, it can be said that the tax incidence remains unchanged unless it is exposed by the relevant facts that there exists situations that shows that the liability will arise[11]. Therefore, the above discussion has highlighted and critically analyzed the shortcomings of section 260. b) Has the problem with section 260 been mitigated by adoption of Part IVA The Part IVA was introduced to replace section 260 and to overcome the problems that was identified by the judicial decisions. It includes provisions relating to anti avoidance of tax and this are comprised in the section of 177A to 177G[12]. The provisions of the Part IVA are only applicable if the following three conditions are satisfied they are: The scheme must be entered into after 27th May 1981; The scheme is that which is defined under section 177A(1) and (3); The scheme must be carried out for obtaining tax benefit; The tax benefit must be obtained by the taxpayer; In the case of Blackman V Federal Commissioner of Taxation (1993) and Osborne V Federal commissioner of Taxation (1995) it was held that all the elements needs to be satisfied before application of Part IVA[13]. It is not only the commissioner but also the courts and tribunals are also required to inspect each of the elements and if any of the elements is not considered then it will be considered as an error of law. The part IVA was introduced to replace the section 260 of the ITAA 1936[14]. In order to evaluate whether the Part IVA has successfully overcome the problems of section 260 it is important to analyze each of the limitation of section 260. The judicial opinion has shifted away from the literal interpretation of the provisions of the act as was indicted in the Cooper Brookes case. There are numerous other decisions from the lower court to federal court that has shifted the opinion. In the case of Federal Commissioner of Taxation V Students World (Australia) Pty limited, it is stated in the judgment that legislature should introduce legislations in order to overcome the avoidance of tax and the court should provide wide interpretations so that the legislations could attain their objectives[15]. The section 260 is destroyed due to the application of the choice principle. As a result, the dominance of Lord Dennings Prediction test that is applied for section 260 is also expelled. The application of choice principle is surmounted by the introduction of Part IVA and especially by the adoption of statutory prediction Test as per section 177D of the act[16]. The word expressly is used in the section 177C (2) (a)(i) and (b) (i) and the word choice is not used in section 177(2) and (3). This is a clear indication that the choice principle should not be used in the application of Part IVA and particularly while conducting the statutory prediction test for scheme related to avoidance of tax[17]. In order to overcome the problem of section 260 in Part IVA under section 177F reconstruction powers are provided and under section 177G the powers are provided to the commissioner to amend the assessment. The powers that are provided to commissioner under section 177G are extensive and wide. These wide powers of commissioners are necessary in order to have an effective provision for reconstruction[18]. The Garfield Barwick developed the antecedent transaction principle because of which the section 260 was applicable only to limited circumstances. The statutory prediction test and other provisions of Part IVA is adopted to ensure that the application of the principle is discontinued[19]. In Pat IVA, there is no specific exclusion of the ordinary business or family dealings but the government has decided to hold back the application of the provisions of Part IVA in the mentioned circumstances. Therefore, from the above discussion it can be concluded that the adoption of Part IVA has successfully overcome various shortcomings of section 260. Difficulties of Part IVA The Part IVA has many limitations that have narrowed the scope of its applicability. The elements of Part IVA are considered to identify its difficulties: Part IVA is only applicable to scheme and not on sub scheme The section 177A (1) defines Scheme as any agreement, arrangement, understanding, promise or undertaking, whether expressed or implied and whether or not enforceable or intended to be enforceable by legal proceedings and any scheme, plan, proposal, action, course of action or course of conduct. The definition of Scheme is very wide and one of the elements for the application of Part IVA is satisfied. The scheme that has been identified should also satisfy the other elements so that Part IVA is applicable[20]. There are various court cases that have stated that it is not sufficient if only a part of the scheme that is a sub scheme satisfies the all the elements of the Part IVA. It should be noted that it is difficult to assess whether the dominant purpose of the scheme is to avoid tax or to take legitimate profit-making transaction. In the case of Federal commissioner of Taxation V Peabody (1994), the difference between a scheme and a sub scheme is highlighted. It is stated in the cas e that a scheme as opposed to a sub scheme should be able to stand in their own even if it is robbed of all practical meaning. It was given emphasis in the case of Spotless Service limited V Federal Commissioner of taxation (1995) that the definition of the scheme as provided in section 177A requires that the parties to the scheme must be identified[21]. The case also states that the terms and conditions along with the steps for particular course of action that are relevant for the purpose should be identified. The definition of scheme as provided in Part IVA does not state that a scheme includes a part of the scheme so in spite of wide definition of scheme the part of the scheme should not be considered as a scheme in itself as per the case of Federal commissioner of Taxation V Peabody (1994). In the case of Peabody V federal commissioner of Taxation (1994), it was held that if a scheme comprises of a series of steps then individual steps that are part of the scheme could not be co nsidered as a scheme in itself[22]. Relevant taxpayer should be the person obtaining the tax benefit The relevant taxpayer may be defined as an individual that has obtained tax benefit from the scheme as defined under section 177D. Therefore, the idea of taxpayer is interrelated with the idea of tax benefit as provided in section 177C. In the case of Peabody V Federal commissioner of Taxation (1992), it was held that the relevant taxpayer could not be chosen arbitrarily as it is governed by section 177C (1). The relevant taxpayer in section 177D should be the same person should be the same person who is a taxpayer in section 177C as held in the case of Peabody V Federal Commissioner of Taxation 1992[23]. Tax benefit The section 177C (1) defines tax benefit as the non inclusion of an item that would otherwise be included in the taxpayers income and it also includes that deduction that is otherwise not allowable is allowed only for the purpose of the scheme. The other tax benefits like rebate or credit is not included within the definition of tax benefit therefore it is not part of Part IVA as held in the case of Peabody V Federal commissioner of Taxation 1993. There is certain limitation that affects the scope of the idea of tax benefit. As per section 177C (1) before Part IVA is applied it is important to ascertain with certainty that the income should have been derived or the deduction is not allowed only for the tax avoidance scheme. In the case of Peabody V Federal Commissioner of Taxation 1993 it was held that the section 177C (1) (a) requires that not only possibility but also reasonable probability should have been existed that the income would have been derived by the taxpayer[24]. This r equired test to predict the event that would have occurred if the scheme were not applicable and the prediction should be reliable in order to be reasonable. In the case of Peabody V Federal Commissioner of Taxation 1994, it was seen that the idea of tax benefit was decisive in concluding that the part IVA is not applicable. Therefore it can be seen that in section 177C (2) there are certain elements of section 260 that has rendered it ineffective like antecedent transaction test and the choice principle. Purpose of obtaining the tax benefit The section 177D provides that the person should have entered into the scheme in order to enable the taxpayer to obtain the tax benefit. The person as mention in the section may or may not be the taxpayer. In the case of Federal commissioner of Taxation V Consolidated Press holdings Ltd 1999 it was held that the purpose mentioned earlier must exist at the time of entering the scheme[25]. In the case of Federal commissioner of Taxation V Spotless Service Limited 1996, it was held that the dominant purpose is the purposes that are most influential and prevailing or ruling purpose. Therefore, the dominant purpose should be determined through the objective consideration as was held in the case of Peabody V federal Commissioner of Taxation 1993[26]. Therefore, from the above discussion it can be concluded that the Part IVA has its own limitations. The Part IVA has been able to successfully overcome the shortcomings of section 260 but it has given rise to difficulties of its own. 2. In Australia, the Income Tax Assessment Act 1997 is an important legislation that governs the computation of the income tax that is required to be paid by the taxpayer. In section, 4-1 of the ITAA 1997 it is stated that income tax is required to be paid by each individual, companies and other entities. The ITAA 1997 in Division 7 has classified income as ordinary income and statutory income. The section 6-5 (1) states that assessable income of the taxpayer should income according to the ordinary concept. The ordinary income is further classified into income that are received from personal exertion, income received from profit making schemes and income received from property. The section 6-10 of the ITAA 1997 states that the incomes that are not ordinary income are the statutory income and this income should also be included in the assessable income. On analyzing the section 6-5 and section 6-10, it can be seen that in case of Australian resident income derived from all sources whe ther received directly or indirectly should be included in the assessable income. The section 6-5 and 6-10 of the ITAA 1997 also states that in case of foreign resident the income that are received from the sources within Australia should be included in the assessable income[27]. On analyzing the sections, it can be seen that the assessable income changes depending on the residential status of the taxpayer. Therefore, it is important to ascertain the residential status of the taxpayer before determining the taxable income. In the case of Federal Commissioner of Taxation V Applegate 1979, it was held that the residential status is determined by facts and it is an important criteria that is essential in determining the liability of the taxpayer. Therefore, the residential status should be determined on a year-to-year basis. The term Australian resident is defined in section 995-1 of the ITAA 1936 and it means an individual that is a resident of Australia. The Taxation Ruling 98/17 in Para 12 it is stated that if according to the ordinary concept an individual resides in Australia then other tests are not required to be conducted. If the individual is not an Australian resident then other tests should be considered for determining the residential status of the individual. The Para 32 of the Taxation Ruling 98/17 provides four tests for determining the residential status of the tax payer they are residency as per the ordinary concept; the domicile test; the 183 day tests and the superannuation fund test. I f the taxpayer fulfills any of the above tests then the taxpayer should be considered as a resident. In accordance with the first test if an individual resides in Australia, then the individual is considered as a resident taxpayer. The second test is the Domicile test and it states that an individual is considered as resident if the permanent place of abode is in Australia[28]. The third test is the 183 days test and it states that if an individual stays in Australia with or without break for 183 days or more then the individual will be considered as resident for the purpose of tax. It is to be noted that 183 days test is not applicable if the taxpayer is planning to have a place of residence outside Australia or it is established that the taxpayer is not willing reside in Australia. Then lastly, the superannuation tests are applicable to the government employees that are working abroad so that they can be treated as a resident for the purpose of tax. In this case lucky came to Australia in 2013 for studying. The lucky continued to stay in Australia for studying from February to November during the year 2013 to 2015. In the first two years lucky stayed in the campus, in June 2016 took permanent residence status of Australia. During the stay in Australia Luck received dividend income and the fess. Here in this case it is to be determined whether lucky is required to pay income tax in Australia. In order to ascertain this firstly it is required to determine the residential status of Lucky. As Lucky is born in, New Zealand so cannot be as considered as resident according to the ordinary concept. In the financial year 2013-14, 2014-15 and 2015-16 Lucky did not have a place of abode in Australia so Lucky is not a resident as per Domicile test. Therefore, the residential status of lucky is verified using the 183-day tests. The 183-day test requires the taxpayer to stay in Australia for 183days or more the calculation given below shows t hat Luck has stayed in Australia for 150 days during 2013-14, 303 days for 2014-15 and 153 days for 2015-16. Therefore, it can be concluded based on 183 days test that Luck should be considered as resident for the purpose of tax during the year 2014-15. During the year 2013-14 and 2015-16 Lucky should be considered as foreign resident for the purpose of tax. In the year 2014-15 as Lucky is considered as resident for the purpose of tax so the dividend income of $1200.00 and the fees that are received for the articles are taxable in Australia. In section 6-5(3) it is stated that if the income is received from Australian sources then in case of foreign resident it should be included in the taxable income. In the given case, the dividend income and the fees both are received from sources in New Zealand. Therefore, during the year, 2013-14 and 2015-16 the income received from dividend and fees are not taxable in Australia. In the case, it is also stated that after June 2016 Lucky took pe rmanent resident in Australia so any income received after June 2016 is taxable in Australia. 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