Greenwoods and Freehills Weekly Tax Highlights - Week Ended 28.3.08

ATO Documents

Released 26.3.08

Taxation Determinations
TD 2008/2: Fringe benefits tax: in determining whether a charitable institution is a rebatable employer for the purposes of paragraph 65J(1)(baa) of the Fringe Benefits Tax Assessment Act 1986, is the institution 'established by a law of the Commonwealth, a State or a Territory' under subsection 65J(3) of that Act because it is incorporated under either the Corporations Act 2001 or under a law of a State or Territory which relates to the incorporation of Associations?
TD 2008/3: Fringe benefits tax: for the purposes of Division 7 of Part III of the Fringe Benefits Tax Assessment Act 1986, what amount represents a reasonable food component of a living-away-from-home allowance for expatriate employees for the fringe benefits tax year commencing on 1 April 2008? 
TD 2008/4: Fringe benefits tax: what are the rates to be applied on a cents per kilometre basis for calculating the taxable value of a fringe benefit arising from the private use of a motor vehicle other than a car for the fringe benefits tax year commencing on 1 April 2008?  
TD 2008/5: Fringe benefits tax: for the purposes of section 28 of the Fringe Benefits Tax Assessment Act 1986 what are the indexation factors for valuing non-remote housing for the fringe benefits tax year commencing on 1 April 2008? 
TD 2008/6: Fringe benefits tax: for the purposes of section 135C of the Fringe Benefits Tax Assessment Act 1986 , what is the exemption threshold for the fringe benefits tax year commencing on 1 April 2008? 
Draft Taxation Determinations
TD 2008/D3: Income tax: where a taxpayer has supplied or acquired property under an international agreement and that gives rise to a debt interest or an equity interest as defined for the purposes of Division 974 of the Income Tax Assessment Act 1997, does Division 974 bear upon the characterisation to be adopted for the purposes of the application of Division 13 of Part III of the Income Tax Assessment Act 1936 to the transaction?  
TD 2008/D4: Income tax: is a Deferred Purchase Agreement warrant, an investment product offered by financial institutions, a traditional security for the purposes of sections 26BB and 70B of the Income Tax Assessment Act 1936? 
TD 2008/D5: Income tax: capital gains: does CGT event C2 happen as a result of the satisfaction of an investor's rights under a Deferred Purchase Agreement warrant, an investment product offered by financial institutions, by the delivery of the Delivery Assets? 
TD 2008/D6: Income tax: is a taxpayer entitled to an income tax deduction under subsection 70B(2) of the Income Tax Assessment Act 1936 where a Stapled Security of the kind described in Taxpayer Alert TA 2008/1, is sold at a loss or upon the occurrence of an Assignment Event? 
Product Rulings
PR 2008/30: Income tax: 1998 Timbercorp Eucalypts Project  
PR 2008/31: Income tax: FEA Plantations Project 2008 - Woodlot Option 1  
PR 2008/32: Income tax: FEA Plantations Project 2008 - Woodlot Option 2 
PR 2008/33: Income tax: FEA Plantations Project 2008 - Woodlot Option 3 
PR 2008/34: Income tax: FEA Plantations Project 2008 - Woodlot Option 4  
Notices of Withdrawal
Product Ruling
PR 1999/4: Income tax: Queensland Paulownia Forests Project No. 3 
PR 1999/100: Income tax: Queensland Paulownia Forests Project No. 4 
PR 2000/96: Income tax: Queensland Paulownia Forests Project No. 4 
PR 2001/3: Income tax: Queensland Paulownia Forests Project No. 5 
PR 2001/119: Income tax: Queensland Paulownia Forests Project No. 4 
PR 2001/120:  Income tax: Queensland Paulownia Forests Project No. 2 
PR 2001/121: Income tax: Paulownia Forestry Scheme 
PR 2001/141: Income tax: Queensland Paulownia Forests Project No. 5: Extended Offer 
PR 2001/176: Income tax: Queensland Paulownia Forests Project No. 6  
PR 2002/85: Income tax: Queensland Paulownia Forests Project No. 6 
PR 2003/39: Income tax: Queensland Paulownia Forests Project No. 7 
PR 2004/19: Income tax: Queensland Paulownia Forests Project No. 8 
PR 2004/22: Income tax: Queensland Paulownia Forests Project No. 7 (Revised Arrangement) 
PR 2004/48: Income tax: Queensland Paulownia Forests Project No. 4 (6 September 2000 to 13 September 2000)
PR 2004/100: Income tax: Queensland Paulownia Forests Project No. 8 - Capital Forestry Units 
PR 2004/101: Income tax: Queensland Paulownia Forests Project No. 8 - Capital Forestry Units (Discounted fees)  
PR 2005/38: Income tax: QPFL Project No. 9 
PR 2005/39: Income tax: QPFL Project No. 9 - Discounted Fees  
PR 2005/42: Income tax: Queensland Paulownia Forests Project No. 8 - Income Forestry Bonds  
PR 2006/10: Income tax: Capital Forestry Units 2006 and 2007 - 2006 Financial Year 
PR 2006/11: Income tax: Capital Forestry Units 2006 and 2007 - 2007 Financial Year 
PR 2006/12: Income tax: The Forestry Project 2006 and 2007 - 2006 Financial Year  
PR 2006/13: Income tax: The Forestry Project 2006 and 2007 - 2007 Financial Year 
PR 2006/15: Income tax: Income Forestry Bonds 2006 and 2007 - 2006 Financial Year 
PR 2006/16: Income tax: Income Forestry Bonds 2006 and 2007 - 2007 Financial Year 
Addenda
Class Ruling
CR 2007/108: Income tax: The National Mutual Life Association of Australasia Limited: Application of section 26AH of the Income Tax Assessment Act 1936 to Guaranteed Investment Bonds and Personal Investment Bonds 
Erratum
CR 2008/15: Income tax: scrip for scrip: exchange of shares in Home Building Society Ltd for shares in Bank of Queensland Ltd 
Taxpayer Alerts
TA 2008/3: Uncommercial use of certain trusts
TA 2008/4: Self-managed superannuation funds deriving income from certain uncommercial trusts

Released 28.3.08

New Interpretative Decisions
ATO ID 2008/46: Foreign residents and indirect Australian real property interests
ATO ID 2008/47: Fuel tax credits and measuring instruments for fuel
Withdrawn Interpretative Decision
ATO ID 2001/702: GST and input tax credits for cost of constructing residential premises
ATO ID 2001/703: GST and supply of residential premises rented out for more than five years
ATO ID 2003/187: Assessability of employment income received by Australian resident for service aboard a ship operated in international waters
ATO ID 2005/14: Product Stewardship Oil: what is re-refining? 
ATO ID 2006/142: Assessability of an Australian pension received by a resident of Indonesia 

McDonald's Australia Ltd v FCT (No 2) [2008] FCA 395, 27 March 2008: The taxpayer has been refused leave to appeal to the Full Federal Court against an interlocutory judgment. The Federal Court had dismissed the taxpayer's applications for summary judgments for appeals lodged against the Commissioner's disallowance of objections relating to GST assessments issued on the basis that it had failed to discharge the burden of proof. The Court decided that there was no basis for appeal to the Full Court since the taxpayer's arguments remained open for use at a final hearing by a single judge.

Tasman Group Services Pty Ltd v FCT(No 2) [2008] FCA 218: The Commissioner has appealed to the Full Federal Court. The Federal Court held that the commercial debt forgiveness provisions in Div 245 of Sch 2C to the ITAA 1936 applied to loans from a foreign company to its Australian subsidiary.

Released 20.3.08

FCT v Miniello and Ors [2008] FCA 397, 11 March 2008: The Federal Court has held that the AAT had erred by not finding the taxpayer liable for penalty tax. The Commissioner appealed after the AAT found no penalty tax applied, despite also finding that Part IVA applied to the taxpayer's deductions. The Court found that the AAT should have applied both s. 226L and the reasoning used in Starr v FCT (2007), in which it was found that s 226L required the application of a subjective test notwithstanding the objective "sole or dominant purpose" under Pt IVA.