Taxation Ruling

TR 2000/17

Income tax: deductions for interest following the Steele decision

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FOI status:

may be releasedFOI number: I 1022332

Preamble

What this Ruling is about

Class of person/arrangement

1. This Ruling considers the implications of the decision of the High Court in Steele v. FC of T 99 ATC 4242; (1999) 41 ATR 139. Steele's case concerns, amongst other things, the deductibility of interest on money borrowed to purchase land intended to be developed. The case involves claims for interest incurred in periods during which no relevant assessable income was derived.

2. Although the case deals with the issue in terms of subsection 51(1) of the Income Tax Assessment Act 1936 ('the Act'), the decision in the case and the discussion in this Ruling have equal application to section 8-1 of the Income Tax Assessment Act 1997. All references to subsection 51(1) should therefore be taken as including a reference to section 8-1.

Ruling

Deductions for interest

3. The deductibility of interest is determined through an examination of the purpose of the borrowing and the use to which the borrowed funds are put (Fletcher & Ors v. FC of T 91 ATC 4950; (1991) 22 ATR 613, FC of T v. Energy Resources of Australia Limited 96 ATC 4536; (1996) 33 ATR 52, and Steele).

4. Ordinarily '...the purpose of the borrowing will be ascertained from the use to which the borrowed funds were put...' (Hill J in Kidston Goldmines Limited v. FC of T 91 ATC 4538 at 4545; (1991) 22 ATR 168 at 176). However, as his honour later observed in FC of T v. JD Roberts; FC of T v. Smith 92 ATC 4380 at 4388; (1992) 23 ATR 494 at 504, '...a rigid tracing of funds will not always be necessary or appropriate...'.

Can interest be capital?

5. In Australian National Hotels Limited v. FC of T 88 ATC 4627; (1988) 19 ATR 1575 Bowen CJ and Burchett J said (at ATC 4633; ATR 1582):

'... there is a special feature of loan capital, which flows from the ephemeral nature of a loan. The cost of securing and retaining the use of the capital sum for the business, that is to say, the interest payable in respect of the loan, will be a revenue item. It creates no enduring advantage, but on the contrary is a periodic outgoing related to the continuance of the use by the business of the borrowed capital during the term of the loan ...

Rent ... and interest are both periodic payments for the use, but not the permanent acquisition, of a capital item. Therefore, a consideration of the often-cited three matters identified by Dixon J in Sun Newspapers Limited v FC of T (1938) 61 CLR 337 at p. 363 assigns interest and rent to revenue.'

6. However, when Mrs Steele's case came before the Full Federal Court in Steele v. FC of T 97 ATC 4239; (1997) 35 ATR 285, the majority (Burchett and Ryan JJ) said at ATC 4247; ATR 294 that in The Texas Company (Australasia) Limited v. FC of T (1940) 63 CLR 382, when Dixon J discussed the way the Australian system treats interest on money borrowed to secure capital, he was speaking in the context of current income-gathering activities. They said he regarded interest payments as part of the 'recurrent expenditure which must be incurred to obtain the use of the money'. They said that interest paid in relation to the acquisition or creation of a capital asset, which is later to be utilised in income-gaining activities, is paid so that, when the time comes, an enduring asset will be available for use in the intended activity. The implication is that in such circumstances the interest is a capital expense or is of a capital nature, and the fact that while the capital asset is being created the payments of interest are recurrent is not enough to change this conclusion.

7. On appeal, a majority of the High Court (Gleeson CJ, Gaudron and Gummow JJ) overturned the decision and rejected this reasoning of the Full Federal Court. The majority expressed the following view:

'As was explained in Australian National Hotels Ltd v FC of T, interest is ordinarily a recurrent or periodic payment which secures, not an enduring advantage, but, rather, the use of the borrowed money during the term of the loan. According to the criteria noted by Dixon J in Sun Newspapers it is therefore ordinarily a revenue item. This is not to deny the possibility that there may be particular circumstances where it is proper to regard the purpose of the interest payments as something other than the raising or maintenance of the borrowing and thus, potentially, of a capital nature. However, in the usual case, of which the present is an example, where interest is a recurrent payment to secure the use for a limited time of loan funds, then it is proper to regard the interest as a revenue item, and its character is not altered by reason of the fact that the borrowed funds are used to purchase a capital asset.' (at ATC 4248; ATR 148).

Interest incurred prior to assessable income

8. The rejection of the Full Federal Court's finding of capital did not dispose of the matter for the High Court. It revitalised the relevance of the earlier finding of the Administrative Appeals Tribunal that Mrs Steele should be denied a deduction in respect of the interest outgoings (in excess of agistment income) substantially on the ground that the first limb of subsection 51(1) was not satisfied.

9. At ATC 4251; ATR 150 the majority embraced the proposition that expenditure will be 'incurred in gaining or producing the assessable income' (that is, come within the first limb of subsection 51(1)) if it is 'incidental and relevant' to the gaining or producing of that income. In the case of Mrs Steele the relevant assessable income was not expected until well into the future, and the question arose as to whether, in all the circumstances, the interest expenditure was indeed both 'incidental and relevant'.

10. The majority found that the latter requirement was satisfied:

'Bearing in mind that the assessable income referred to is the assessable income of the taxpayer generally, it seems difficult to deny the relevance of the outgoing presently in question'.

11. Whether expenditure made prior to the derivation of expected assessable income is 'incidental' also falls for consideration. The majority explained the temporal relationship in the following way:

'There are cases where the necessary connection between the incurring of an outgoing and the gaining or producing of assessable income has been denied upon the ground that the outgoing was "entirely preliminary" to the gaining or producing of assessable income or was incurred "too soon" before the commencement of the business or income producing activity. The temporal relationship between the incurring of an outgoing and the actual or projected receipt of income may be one of a number of facts relevant to a judgment as to whether the necessary connection might, in a given case, exist, but contemporaneity is not legally essential, and whether it is factually important may depend upon the circumstances of the particular case.

As Lockhart J said in FC of T v. Total Holdings (Australia) Pty Ltd:

"...[I]f a taxpayer incurs a recurrent liability for interest for the purpose of furthering his present or prospective income earning activities, whether those activities are properly characterised as the carrying on of a business or not, generally the payment by him of that interest will be an allowable deduction under s 51. ...

"I say 'generally' as some qualification may be necessary in appropriate cases, for instance, where interest is paid by a taxpayer as a prelude to his being in a position whereby he may commence to derive income. In such cases the requirement that the expenditure be incidental and relevant to the derivation of income may not be satisfied." '

12. It follows from Steele that interest incurred in a period prior to the derivation of relevant assessable income will be 'incurred in gaining or producing the assessable income' in the following circumstances:

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The interest is not incurred 'too soon', is not preliminary to the income earning activities and is not a prelude to those activities;

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the interest is not private or domestic;

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the period of interest outgoings prior to the derivation of relevant assessable income is not so long, taking into account the kind of income earning activities involved, that the necessary connection between outgoings and assessable income is lost;

•

the interest is incurred with one end in view, the gaining or producing of assessable income; and

•

continuing efforts are undertaken in pursuit of that end.^[F1]

Interest incurred after assessable income

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Date of effect

17. This Ruling applies to years commencing both before and after its date of issue. However, the Ruling does not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of issue of the Ruling (see paragraphs 20 and 21 of Taxation Ruling TR 92/20).

Explanations

Deductions for interest

18. The majority in Steele did not dwell upon the general aspects of interest deductibility. Their comments were limited to the following:

'In deciding whether, in the present case, the interest was an outgoing "incurred in gaining or producing the assessable income", it is unnecessary to become involved in seeking to distinguish between the purpose of the taxpayer in borrowing the money and the use to which the borrowed funds were put' (at ATC 4251; ATR 150).

19. But this was not because the use and purpose were unimportant - it was because the use and purpose in this case were harmonious.

20. [Deleted]

21. [Deleted]

Interest and capital

22. Even though generally interest cannot be capital (see paragraph 7 above), the proposition does not extend to other types of recurrent expenditure. For example, if Mrs Steele had reached the stage of actual motel construction, weekly payments to bricklayers would be capital,^[F2] even though the recurrent interest expenditure in respect of the loan funds used to buy the land would not be so. And it might be noted that even though interest on borrowed funds is ordinarily on revenue account, the outlay of the relevant borrowed funds on other recurrent costs, such as the bricklayer payments, can still fail to give rise to a deduction for those costs owing to the operation of the capital exclusion.

Expenditure incurred prior to assessable income

23. It is well accepted that expenditure can satisfy the positive limbs of subsection 51(1) even though it is incurred in a period prior to any expected resultant income^[F3]. Even so, the majority in Steele acknowledged that those limbs will not be satisfied if that expenditure is 'too soon', 'preliminary' or a 'prelude' (see paragraph 11 above):

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An outgoing may be 'too soon' in the sense that a significant delay between the incurring of an outgoing and the actual or projected receipt of income may be relevant in determining whether expenditure is deductible; and

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An outgoing may be 'too soon' in the sense that the advantage conferred by the expenditure is necessary for, but not to be found 'in', the regular income earning activities ('functionally too soon'). Such a situation can arise even in the absence of the above mentioned 'significant delay'.

24. In relation to temporal delays:

'... [s]tatements in the cases that a loss or outgoing was incurred "too soon" for it to satisfy the statute are not intended to lay down a further test ...'.

Rather, it is merely that:

'[t]he temporal hiatus may suggest the outgoing was incurred for some purpose other than the gaining or producing of assessable income' (both per Lee and Lindgren JJ in FC of T v. Brand 95 ATC 4633 at 4646; (1995) 31 ATR 326 at 341).

Temelli v. FC of T 97 ATC 4716; (1997) 36 ATR 417 is a case in which it was found that the temporal hiatus left open the possibility of some purpose other than gaining or producing assessable income to such an extent that the required nexus did not exist.

25. There has been a number of instances in which Australian courts have held that an outgoing is not deductible because it falls into the second category (i.e., functionally too soon). For example:

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expenses relating to the establishing of a paper production industry were not deductible as they were held to be entirely preliminary and directed at deciding whether or not an undertaking would be established to produce assessable income - Softwood Pulp and Paper Ltd v. FC of T 76 ATC 4439; (1976) 7 ATR 101.

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expenses incurred by a professional footballer in securing employment with a new club were incurred too soon to be properly regarded as gaining or producing assessable income - FC of T v. Maddalena 71 ATC 4161; (1971) 2 ATR 541.

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expenditure on research into the development and production of monoclonal antibodies was not deductible as the company was not conducting the research as a business or an activity of gaining or producing assessable income but rather as a collaborator in a research project - Goodman Fielder Wattie.

26. Neither the majority, nor Callinan J, found that Mrs Steele's interest payments were incurred 'too soon' in either of the senses discussed in paragraph 23 above:

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Even though the interest was incurred well prior to anticipated resultant income:

'The appellant's intentions were always entirely commercial ones for the purpose of gaining or producing assessable income. As the majority here has also said, there was no suggestion that the applicant ever contemplated using the property for private or domestic purposes ...' (Callinan J at ATC 4261; ATR 165)

and

'... the expenditures.....were made with one end in view, of gaining or producing assessable income ...' (Callinan J at ATC 4263; ATR 168)

and any suspicions that might have been entertained about the true intentions were allayed by the observation that the interest expenditure was:

'... made over a period that may be viewed as a relatively short one in the relevant industry ...' (Callinan J at ATC 4263; ATR 168)

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Even though the interest was incurred over a period during which it was intended to improve the asset secured by the borrowed funds, leaving open the possibility that the outgoing was not incurred 'in' the (future) income earning activities, there was no such finding. Significantly, while both the majority and Callinan J were very much alive to the possibility that expenditures can fail to be deductible for these kinds of reasons (majority at ATC 4251; ATR 151, and the cases there cited and Callinan J at ATC 4262; ATR 167), they did not countenance the notion that interest during a period of improvement might be seen as 'paid by a taxpayer as a prelude to his being in a position whereby he may commence to derive income' (see paragraph 11 above).

27. It follows that interest on borrowed funds which have been expended upon any aspect of the development of a property which is solely intended to be employed in income earning operations would satisfy the first of the conditions at paragraph 12 above.

28. The last of those conditions requires that continuing efforts are undertaken in pursuit of assessable income. It received no attention from the majority, and consideration of this matter is to be found in the reasons of Callinan J. We have concluded that the concept of 'continuing efforts' should not be taken to require constant on-site development activity. However, if a venture becomes truly dormant and the holding of the asset is passive, relevant interest will not be deductible even if there is an intention to revive that venture some time in the future. This is consistent with Inglis v. FC of T 80 ATC 4001; (1980) 10 ATR 493 (see Brennan J at ATC 4004; ATR 496, except for the comments about interest deductions being capital which must now be considered incorrect, and Davies J at ATC 4008; ATR 500). Inglis is a case cited with approval by the majority, although in a slightly different context (Steele at ATC 4251; ATR 151).

29. A very recent decision of the Federal Court concerning the deductibility of interest prior to the derivation of assessable income is Anovoy Pty Ltd v. FC of T 2000 ATC 4445; (2000) 44 ATR 507. We consider that the reasons for judgment there are not inconsistent with the principles expressed in this Ruling. To the extent that there are differences, they are explicable by the relevant distinctions of fact that French J draws between this case and Steele (see point "2" in paragraph 38 - ATC 4455; ATR 519, and paragraph 45 - ATC 4458; ATR 522).

Expenditure incurred after assessable income

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Penalty 'interest' payments

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Alternative view

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Detailed contents list

40. Below is a detailed contents list for this draft Ruling:

Commissioner of Taxation
13 December 2000

Previously released as TR 2000/D3.

References

ATO references:
NO T2000/1633

Related Rulings/Determinations:

TR 2003/D8
IT 196
IT 209
TR 92/1
TR 92/3
TR 92/20
TR 93/7
TR 95/33
TR 97/16
TR 98/22
TD 95/27

Subject References:
interest expenses
deductions and expenses

Legislative References:
ITAA 1936 51(1)
ITAA 1997 8-1

Case References:
Anovoy Pty Ltd v. FC of T
2000 ATC 4445
(2000) 44 ATR 507

AGC (Advances) Ltd v. FC of T
75 ATC 4057
(1975) 5 ATR 243
Australian National Hotels Limited v. FC of T
88 ATC 4627
(1988) 19 ATR 1575
FC of T v. Brand
95 ATC 4633
(1995)31 ATR 326
FC of T v. Brown
99 ATC 4600
(1999) 43 ATR 1
FC of T v. Energy Resources of Australia Limited
96 ATC 4536
(1996) 33 ATR 52
FC of T v. JD Roberts; FC of T v. Smith
92 ATC 4380
(1992) 23 ATR 494
FC of T v. Maddalena
71 ATC 4161
(1971) 2 ATR 541
FC of T v. Total Holdings (Australia) Pty Ltd
79 ATC 4279
(1979) 9 ATR 885
Fletcher & Ors v. FC of T
91 ATC 4950
(1991) 22 ATR 613
Goodman Fielder Wattie Ltd v. FC of T
91 ATC 4438
22 ATR 26
Inglis v. FC of T
80 ATC 4001
(1980) 10 ATR 493
Kidson Goldmines Limited v. FC of T
91 ATC 4538
(1991) 22 ATR 168
Placer Pacific Management Pty Limited v. FC of T
(1995) 95 ATC 4459
(1995) 31 ATR 253
Ronpibon Tin NL and Tongkah Compound NL v. FC of T
(1949) 78 CLR 47
Softwood Pulp and Paper Ltd v. FC of T
76 ATC 4439
(1976) 7 ATR 101
Steele v. FC of T
97 ATC 4239
(1997) 35 ATR 285
Steele v. FC of T
99 ATC 4242
(1999) 41 ATR 139
Sun Newspapers Limited v. FC of T
(1938) 61 CLR 337
Temelli v. FC of T
97 ATC 4716
(1997) 36 ATR 417
The Texas Company (Australasia) Limited v. FC of T
(1940) 63 CLR 382