Ruling Compendium

This is consistent with Fletcher v. FC of T 91 ATC 4950; (1991) 22 ATR 613.

The examples should therefore include a consideration of the likelihood of the taxpayer receiving income.

The taxpayer's interest expense will be fully deductible where the units provide the taxpayer with an annual, cumulative entitlement to an amount of income which is calculated to exceed the taxpayer's interest cost.

A loss or outgoing is not deductible where it is incurred to gain or produce benefits for other persons.^[F1] It therefore remains necessary to determine what the expenditure is objectively for.^[F2] The prospect of the taxpayer making a profit from their investment may simply mean that it is unnecessary to consider subjective purpose.

The laying out of the borrowed money for the purpose of gaining assessable income 'furnishes the required connection between the interest paid upon it by the taxpayer and the income derived by him from its use'.^[F3] Accordingly, interest expense is not deductible to the extent that the borrowed money has been used to benefit others.

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Service v. FC of T 2000 ATC 4176; (2000) 44 ATR 71

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FC of T v. Firth 2002 ATC 4346; (2002) 50 ATR 1, and

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Hart v. FC of T 2002 ATC 4608; (2002) 50 ATR 369.

In Service v. FC of T [2000] FCA 188; 2000 ATC 4176 at 4186; (2000) 44 ATR 71 at 81, the Full Federal Court provided that it is necessary to consider the essential character of an expenditure when deciding whether the expenditure in question was excluded from deductibility under the exclusory limbs of the subsection. The Full Federal Court also held that objective purpose is relevant in determining whether an expenditure is deductible (see ATC at page 4187, ATR at page 83). Similarly in Hart v. FC of T [2002] FCAFC 222; 2002 ATC 4608; (2002) 50 ATR 369, the Court held the objective facts must be considered when characterising an expense.

In FC of T v. Firth [2002] FCA 413; 2002 ATC 4346; (2002) 50 ATR 1, Hill J stated that where a loss or outgoing has some connection with the gaining or production of assessable income but also has some other connection, it will be necessary to apportion the loss or outgoing. Both Hill J, and the joint judgment of Sackville and Finn JJ, referred to Ure v. FC of T (1981) 50 FLR 219; (1981) 11 ATR 484; 81 ATC 4100, when providing that it will be sometimes necessary to go beyond the legal rights and obligations for the purposes of seeing whether interest incurred by a taxpayer as an outgoing falls within the first limb of former subsection 51(1) of the Income Tax Assessment Act 1936 (ITAA 1936). The question is what is the interest paid for? This is to be ascertained by looking at the whole of the circumstances of the bargain.

To the extent to which interest is paid for the purpose of benefiting others, it is not incurred in gaining or producing the taxpayer's assessable income, or is of a private or domestic nature, that portion is not deductible.

If the interest is incurred for a dual purpose then it should be apportioned between what can properly be regarded as incurred in gaining or producing assessable income and as not being of a private or domestic nature and what cannot properly be so.^[F4]

In Europa Oil (NZ) Ltd (No. 2) v. IRC [1976] 1 AllER 503; 76 ATC 6001; (1976) 5 ATR 744 (Europa Oil No. 2), the Privy Council declined to require apportionment in relation to a variation of the Europa Oil (No. 1) arrangement. It was held that deductibility was to be determined by reference to legal rights associated with the taxpayer's purchase contracts, viewed in isolation from any other benefits it obtained under other contracts.

However, as Brennan J observed in Magna Alloys v. FC of T [1980] FCA 150; 80 ATC 4542 at 4547; (1980) 11 ATR 276 at 282, that principle applies '... where the relevant expenditure is incurred solely in acquiring an asset or a legal right under a contract or in discharging an antecedent legal liability'. According to his Honour there may be '... cases where expenditure is not incurred solely to acquire an asset or legal right under a contract ....'.

A case in point is Federal Commissioner of Taxation v. Munro [1926] HCA 58; (1926) 38 CLR 153; (1926) 32 ALR 339 (Munro's Case). In that case, a father who used borrowed money to purchase shares for himself and his sons could not obtain a deduction for the whole of the interest expense.

The clear relationship between the use of the borrowed funds to establish (or contribute to) a fund for the taxpayers own benefit and the benefit of other persons indicates that the interest outlaid is, in a real sense, a cost of providing the benefits to the other persons, just as it is a cost of obtaining benefits for the taxpayer. In these cases the interest expense will be apportionable.^[F5] Refer to issue 1 above.

The 'dual purpose' of a subscription to an existing trust cannot be objectively ascertained from the trust deed. The trust deed relates to the establishment of the trust rather than its funding.

A taxpayer may settle borrowed money on trust for the benefit of themselves and others at the time of the trust's creation or alternatively, at a later time.

In either case, the regime of rights and obligations which attach to the borrowed moneys when settled upon or contributed to the trust provide an objective basis for characterising the interest expense.

In considering the deductibility of interest on borrowings used to acquire shares, no reference is made to the purpose for which the company would use the money. The interest is fully deductible even if another shareholder receives a benefit from the proceeds of the share issue.

To adopt the view in TD 2008/D16 would require the conclusion that a contribution to acquire cumulative preference shares, by an arm's length shareholder, is partly to benefit other shareholders.

The Determination is concerned with arrangements where the taxpayer subjects the borrowed moneys to trust obligations capable of benefiting other persons who have not contributed to the trust.

In contrast, an arm's length subscriber for shares would expect to obtain rights the value of which are commensurate with the subscription price. Put another way, unless the subscription price is grossly excessive it should be capable of being attributed to the advantage specifically contracted for and obtained by the subscriber. Other members of the company will be expected to have provided similar consideration for their shares. Accordingly, the subscription for shares could not be, objectively, characterised as being for the benefit others.

If a taxpayer on-lent borrowed funds to a discretionary trust at a small margin to their funding cost, they would be entitled to deduct all of their interest outgoings, even though they may not enjoy all of the benefits flowing from the capital they have funded.

A loan to a trust on commercial terms could not be, objectively, characterised as being for the benefit of others. The lender obtains a contractual right to payments of principal and interest for themselves. The loan does not increase the net assets of the trust. To the extent that assets are held subject to the trustee's right to reimbursement or exoneration, they are not 'trust assets' or 'trust property', in the sense that they are held solely upon trusts binding the trustee in favour of the beneficiaries.^[F6]

A loan by the taxpayer to a trust made on other than commercial terms would pose a different question. If the benefits passing to the taxpayer under the loan do not provide an objective commercial explanation for the loan then the loan alone will not suffice, without more, to characterise the interest expense.

Instead, TD 2008/D16 requires an assessment of the use of borrowed money by reference to events that may or may not happen in the future.

Apportionment is not appropriate in income years in which no net income has actually been applied to benefit persons other than the taxpayer.

The split property trust units in Taxation Ruling IT 2684 provide the taxpayer with a combination of income and/or capital growth. In contrast, the Determination is concerned with the use of borrowed money to fund a trust for the benefit of both the taxpayer and others. The terms of the trust are known from the outset. They do not depend on future events.

Future events may determine the ultimate recipients of income in some cases, for example, a unit holder may share in trust income because he or she is also a discretionary object. However, in such a case there would not be a perceived connection between the income and the interest outgoing; see paragraph 46 of the Determination.

Where the interest has been incurred for a dual purpose some degree of apportionment will be required. If apportionment is required, what will be appropriate will be essentially a question of fact, to be determined in each case. There must be 'a fair apportionment to each object of the... actual expenditure'. The extent of apportionment may vary from income year to income year. See discussion at paragraphs 43-45 of the Determination.

It is not appropriate to allow an unapportioned deduction in a particular income year merely because the taxpayer receives all of the trust's distributable income in that year. The 'assessable income' referred to in section 8-1 of the ITAA 1997 is the assessable income generally, as opposed to the assessable income of a particular income year.^[F7]

Draft TD 2008/D16 and the Determination confirm that interest on a borrowing used to acquire an income producing investment is deductible, to the extent that the interest is incurred in gaining or producing such income; refer to paragraph 8-1(1)(a) of the ITAA 1997.

Draft TD 2008/D16 did not seek to establish that the examples were 'sinister'. Examples 2 and 3 of the Determination illustrate trust arrangements in which borrowed moneys are used, in part, to benefit others.

It is also not clear why 'a greater part' of Paul's interest expense will be deductible than in Example 2.

The rights attached to the units may carry a sufficient commercial explanation, and apportionment may not be appropriate.

Interest outgoings incurred to provide benefits to others will not be wholly deductible. An unapportioned deduction for interest is not appropriate in the facts of the example, since the borrowed funds have been used, in part, to establish a fund for the taxpayer's family.

The terms 'largely', 'small part' and 'some part' in Examples 2 and 3 should be defined and/or quantified. A better approach is for the individual to obtain a deduction at least equal to the amount of income they receive or are entitled to receive.

Paragraph 45 of the Determination provides a rule of thumb that where income production is a minor object of the taxpayer, the deduction will not generally exceed the amount included in the taxpayer's assessable income. If the taxpayer seeks a deduction in excess of this amount, they bear the onus of establishing that entitlement.

A determination is a 'short form' ruling, addressing an issue which can be explained succinctly (as a 'yes' or 'no'). As such, it does not seek to address all of the factual circumstances which may arise in practice.

The application of section 8-1 of the ITAA 1997 in the circumstances of each case is very much a matter of fact and degree: FC of T v. Forsyth [1981] HCA 15; (1980) 148 CLR 203 at 210; 81 ATC 4157 at 4161; (1981) 11 ATR 657 at 660; FC of T v. Brixius (1987) 16 FCR 359; 87 ATC 4963; (1987) 19 ATR 506.

It remains necessary to refer to 'unit holders', as the issue of units is a feature of all of the trust arrangements covered by the description in paragraph 2 of the Determination.

The terms 'unit trust', 'discretionary trust', and 'hybrid trust' have no established legal definition^[F8] and no clear non-technical meaning. Such terms are descriptive rather than normative, taking their meaning from usage rather than doctrine.^[F9] The use of such terms would create, rather than reduce, uncertainty.

Draft TD 2008/D16 confirmed that the appropriate apportionment is a question of fact, to be determined in each case.

A method based on the amount included in the taxpayer's assessable income is supported by judicial precedent,^[F10] but is only provided as a rule of thumb. Other methods may be appropriate in particular cases.

This paragraph is merely illustrative of the kind of arrangements to which the Determination may apply. It is not, however, an exhaustive list. As such it should remain in the Explanation section of the Determination.

Draft TD 2008/D16 was a draft tax ruling, and the Determination is a tax ruling for the purposes of the Taxation Administration Act 1953.

The scope of the Determination is considered to be appropriate.

The inclusion of examples in the substantive part of a determination is in accordance with ordinary Tax Office practice.