Draft Taxation Determination

TD 93/D12

Income tax: is the business of 'beach worming' primary production under the definition in subsection 6(1) of the Income Tax Assessment Act 1936?

• Please note that the PDF version is the authorised version of this draft ruling.
  This document has been finalised by TD 93/39.

FOI status:

draft only - for comment

Preamble

1. No. 'Beach worming' is not primary production as defined in subsection 6(1).

Production from beach worming does not result directly from:-

(a)

the cultivation of land;

(b)

the maintenance of animals or poultry for the purpose of selling them or their bodily produce;

(c)

fishing operations;

(d)

forest operations; or

(e)

horticulture.

2. Worms are, by definition, 'animals' (see Macquarie Dictionary). Only animals that are domesticated or tamed are within the definition of primary production and animals 'ferae naturae' (of a wild nature) are not (Burnside & Marrakai Ltd v FC of T (1957) 11 ATD 181). A wild animal loses its character of being ferae naturae when its possessor has such power over it that it is always under some form of restraint and cannot follow its natural propensities completely (e.g. hived bees) (per Wright J., R v. Philbey 48 S.J 216). The `maintenance of animals' requires the primary producer to have ownership and possession of the animals or to be their keeper, but nobody has possession or full ownership of animals of a wild nature until they are taken (Burnside). Beach worming does not fall within the definition of primary production because beachworms are animals ferae naturae. In addition, nobody can be said to have full ownership or possession of beach worms until they are taken.

3. Worming is not included in the definition of 'fishing operations' in subsection 6(1) which refers to the taking or catching of fish, turtles, dugong, crustacea, oysters and shellfish, to pearling operations and to oyster farming.

4. Holding a fishing licence, which entitles a person to carry on a 'beach worming' business, does not bring this activity within the definition of 'fishing operations'.

Commissioner of Taxation
21 January 1993

References

BO UMG0059

Related Rulings/Determinations:

IT 2301
IT 2006

Subject References:
beach worming
primary production

Legislative References:
ITAA 6(1)