Test case litigation register

The case has the potential to establish principles of law that go beyond the working holiday maker provisions, particularly in relation to the operation of the non-discrimination clause in those of Australia's tax treaties that include it.

2. Where a beneficiary of a trust disclaims a distribution after an income year, is it nevertheless the case that the beneficiary was "presently entitled" to the distribution at all material times for the purposes of s 97(1) of the Income Tax Assessment Act 1936 (Cth) (1936 Act)?

3. Does section 97(1) of the 1936 Act operate on the facts as they are at the end of the year of income, or can s 97(1) be applied or disapplied by events occurring after the end of the year of income?

2. Whether paragraph 126A(1)(b) of the SIS Act requires the Tribunal to reach a state of satisfaction as to whether the nature, number and/or seriousness of the contraventions of the SIS Act by the Respondent constituted grounds for disqualifying the Respondent

3. Whether the issue of a notice of non-compliance under subsection 40(1) of the SIS Act is a determinative consideration in exercising the residual discretion conferred by subsections 126A(1) and (3) of the SIS Act?

4. Whether, in the circumstances of the Tribunal's findings based on the evidence, the Tribunal's decision to set aside the Commissioner's decision to disqualify the Respondent was legally unreasonable.

The Panel also turned its mind to whether there was a public interest in providing funding, in light of the Tribunal's factual findings of multiple serious contraventions. The Panel considered that this weighed against a public interest in providing public funds to support the appeal.

Accordingly, the Panel recommended that the funding application be declined. The Acting Chair accepted the recommendation and declined funding.

The Panel also considered that the matter was likely to turn on its own facts as the question of whether service across multiple employers should be combined is likely to turn on the approach of the employer at the time the section 83-170 calculation is completed.

It was noted that the matter related to a private ruling issued by the Commissioner and, accordingly, the AAT's review would be confined to the facts as set out in the ruling application. Accordingly, the matter would not be a suitable vehicle to test the provision.

The Panel recommended that funding be declined. The Acting Chair accepted the recommendation and declined funding.

The Panel considered that only a small subset of the entities identified in the application may find themselves in those circumstances and that the matter is therefore unlikely to have a broad enough impact to warrant test case funding.

Accordingly, the Panel recommended that funding be declined. The Chair accepted the recommendation and declined funding.

The Panel also noted that there is an issue on the facts in relation to multiple JobKeeper nominations for the eligible business participant which may circumvent the Tribunal's determination of the proposed issue. Accordingly, the matter would not be an appropriate vehicle for test case funding.

The Panel acknowledged the winding down of the JobKeeper program and noted that there would be no enduring public benefit in providing funding to test the provision.

The Panel recommended that funding be declined. The Chair accepted the recommendation and declined funding.

The Chair accepted the recommendation of the Panel and decided to decline funding primarily on the basis that the matter is likely to turn on the facts and noted existing recent precedent from the High Court.

2. Whether the applicant is liable to repay an overpayment under section 9 of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.

The Panel also acknowledged that there may be some additional issues beyond those in the application to be considered by the Tribunal, such as eligibility conditions for business participants in the JobKeeper program and satisfaction of the decline turnover test.

It was considered that these other issues may distract the Tribunal from any potential law clarification and that the Tribunal may make its decision without substantively considering the issues in the funding application.

The Panel considered that the matter is not an appropriate vehicle for test case funding and recommended that funding be declined.

The Chair accepted the recommendation and declined funding.

In doing so, the Panel noted that several short-term holiday accommodation platforms had entered the market in recent years and that a number of taxpayers supply short term holiday accommodation services as a form of income. However, it was considered that existing legal principles in relation to accommodation services and capital gains tax were enough to cover the field.

The Panel considered that the current matter, as expressed in the application, does not raise a novel question of law that would require a re-examination of the relevant principles.

The Panel observed that the matters described in the application were likely to turn on its specific facts and, consequently, was unlikely to lead to legal precedent in an area of legal uncertainty.

The Panel recommended funding be declined.

The Chair agreed and decided to decline funding.

2. Whether the capital gain arising from the applicant disposing of ETH via the Smart Contract Disposal is disregarded pursuant to section 118-10 of the ITAA 1997 as the capital gain is from the disposal of a personal use asset, as defined in s 108-20 of the 1997 Act.

3. Whether the capital gain arising from the applicant disposing of ETH for AUD via a digital currency exchange (Cash Disposal) is disregarded pursuant to section 118-10 of the ITAA 1997 as the capital gain is from the disposal of a personal use asset, as defined in section 108-20 of the ITAA 1997.

It was also noted that the central issues in the application for declaratory relief relate to whether the applicant's ETH holding is a personal use asset for capital gains tax (CGT) purposes, rather than whether the hard fork resulted in the creation of a new CGT asset in the applicant's hands.

The Panel noted that the first issue refers to complex concepts in relation to cryptocurrencies and blockchain technology. The Panel noted that cryptocurrencies like Ethereum are a relatively new class of asset and, consequently there were potential issues regarding market valuations and the calculation of the cost base for CGT purposes, particularly where there has been a fork.

The Panel considered that the law in relation to identifying personal use assets is well-settled and unlikely to result in legal precedent. It was noted that the ATO has already published guidance in relation to whether Bitcoin is a personal use asset and that advice would be analogous to Ethereum.

Overall, it was considered that the matter is not an appropriate vehicle for test case funding and that the second and third issues do not raise legal questions of significant uncertainty.

The Panel recommended that funding be declined.

The Chair accepted the recommendation of the Panel and decided to decline funding.

2. Whether subdivision 67-L of the Income Tax (Transitional Provisions) Act 1997 was a relevant consideration in determining whether the powers under section 8AAZN were enlivened

3. Whether the payment to the applicant was made by mistake

4. Whether the Commissioner was authorised by section 8AAZN to recover the payment from the applicant

In particular, the Panel noted the observation around the applicant's concession that they were not entitled to the Research and Development refundable offset which is subject of the refund the Commissioner looked to recover. For this reason, the Panel considered the matter could be construed as an attempt to derive a windfall gain and a benefit not intended by the law and recommended funding be declined.

The Chair noted the recommendation of the Panel, and on further review of the issue, acknowledged that whilst test case funding requires regard to be had to all factors, and for all factors to be balanced against each other, the findings of the lower Court, noted above, that the applicant is seeking to reap a windfall gain, make this in an inappropriate case for funding.

The Chair decided that funding should be declined.

2. Whether each of them:

a.

made a payment of the kind specified in paragraph 5(1)(a) (being a payment from which an amount must be withheld or a payment in relation to an alienated personal services payment that it receives in the relevant period); and

b.

included an amount in the entity's assessable income for the 2018-19 income year in relation to it carrying on a business and the Commissioner had notice thereof on or before 12 March 2020 under subsection 5(5); or

c.

made a taxable supply in a relevant tax period that applied to it and the Commissioner had notice thereof on or before 12 March 2020 under subsection 5(6).

Accordingly, the Panel considered that the matter would likely turn on its facts and therefore would not be an appropriate vehicle to provide legal precedent.

It was also noted by the Panel that concerns had been raised by ATO stakeholders as to whether some aspects of the matter could be taken to involve a scheme intending solely to gain access to Cash Flow Boost payments. However, in view of the limited information available at objection, it was unclear whether a finding in relation to a scheme could be supported.

The Panel recommended that funding be declined.

The Chair accepted the Panel's recommendation and declined funding.

1.

by adducing evidence suggesting that all or part of the Commissioner's methodology in making an assessment may have been flawed; and

2.

by adducing evidence that the Commissioner may have been mistaken as to relevant facts when making an assessment.

2. If not, does the Administrative Appeal Tribunal (AAT) have jurisdiction to review the Commissioner's "later time" discretion ('the discretion') to allow a later time for the Taxpayer to hold an ABN (ss11(6) of the Rules)?

3. If so, should the discretion be exercised in the applicant's circumstances?

On the first issue, their Honours held that the requirement in subsection 11(6) of the Rules that an entity "had an ABN on 12 March 2020" should be construed as a point-in-time requirement. That is, a request that an inactive ABN be reinstated and backdated to before 12 March 2020 will not be effective in meeting the requirements of subsection 11(6). The appropriate enquiry is, 'if one had inspected the Australian Business Register on 12 March 2020, would the entity be recorded as holding an ABN?'

For the second issue, their Honours held that the exercise of the discretion forms part of a single entitlement decision rather than standing alone as a separate decision. Accordingly, the Commissioner's decision not to exercise the discretion could be objected to under section 13 of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020, as it formed part of the reviewable decision in respect of entitlement to JobKeeper payments. The AAT is empowered to review objection decisions made by the Commissioner about entitlement decisions, encompassing the exercise of the discretion.

In relation to the third issue, the Court decided that the Tribunal did not err in exercising the discretion in subsection 11(6) to allow the Respondent a later time to have an ABN. The Court concluded that the discretion is constructed broadly according to its terms and its exercise is confined only by statutory purpose and context.

It should be noted that, while the Court did not find error in the Tribunal's decision that the discretion should be exercised in relation to the current applicant, it does not follow that the discretion should be exercised in all cases.

The ATO issued a Decision Impact Statement in relation to this decision on 29 April 2021.

a.

an individual carrying on a business prior to December 2019 restructures the business to operate through the entity, which was created on 17 January 2020

b.

the entity was registered for GST on a quarterly basis effective from 20 January 2020, and

c.

the entity made its first taxable supplies in January 2020?

The Tribunal further held that activities of the business conducted by another entity prior to incorporation were not relevant in determining whether the corporate entity made taxable supplies in the required period. As a matter of law, business activities carried on by the company are separate and distinct from the activities carried on by the individual as a sole trader.

The Tribunal commented in obiter that the requirement to notify the Commissioner of taxable supplies for current purposes is not expressly tied to the statutory requirement that a return or Business Activity Statement be lodged.

Two of the decisions, Burns and Walker, concerned the taxation of invalidity benefits paid from the Military Superannuation and Benefits Scheme (MSBS) and the third, Douglas, concerned the taxation of invalidity benefits paid from the Defence Force Retirement and Death Benefits Scheme (DFRDBS).

The matter raised a significant number of issues for consideration. Central to all was whether the invalidity benefits received by the taxpayers should be taxed as superannuation income stream benefits or superannuation lump sums.

Three primary issues were identified for resolution (resolution of the other issues turned on the resolution of these issues):

1.

Whether subregulation 995-1.01(2) of the Income Tax Assessment Regulations 1997 (ITAR), as it was prior to the Treasury Laws Amendment (Miscellaneous Amendments) Regulations 2018 (2018 amendments), properly prescribed 'superannuation benefits' for the purposes of the definition of 'superannuation income stream benefit' in subsection 307-70(1) of the Income Tax Assessment Act 1997 (ITAA);

2.

Whether the invalidity benefits paid to Burns and Walker were a superannuation income stream as defined in subregulation 995-1.01(1) of the ITAR. A sub-issue for Burns was whether the invalidity benefits paid to him were a superannuation income stream that commenced to be paid before 20 September 2007.

3.

Whether the invalidity benefits paid to Douglas were a superannuation income stream as defined in subregulation 995-1.01(1) of the ITAR. A sub-issue was whether the invalidity benefits paid to him were a superannuation income stream that commenced to be paid before 20 September 2007.

If the invalidity benefits were found not to be superannuation income streams the payments would not be superannuation income stream benefits and would be superannuation lump sum benefits under section 307-65 of the ITAA.

In relation to issue 1, the Court raised concerns about the drafting of the definition of 'superannuation income stream benefit' in the ITAR as it read prior to the 2018 amendments, but held that the definition did properly prescribe superannuation benefits for the purposes of section 307-70 of the ITAA.

In relation to issue 2, the Court held that the invalidity benefits satisfied the definition of pension in section 10 of the Superannuation Industry (Supervision) Act 1993 (SISA), but that the rules of the MSBS do not satisfy the standards set out in subregulation 1.06(2) and subparagraph 1.06(9A)(b)(iii) of the Superannuation Industry (Supervision) Regulations 1994 (SISR) because they do not ensure the invalidity benefits are payable for the lifetime of the recipient.

Accordingly, the Court held that the invalidity benefits paid to Walker, which commenced to be paid after 20 September 2007, were not a superannuation income stream as they did not satisfy the requirements of subparagraph (a)(ii) of that definition in subregulation 995-1.01(1) of the ITAR.

Hence, the invalidity benefits paid to Walker are superannuation lump sums. However, the Court held that the invalidity benefits paid to Burns were a pension that commenced before 20 September 2007 and, hence, were a superannuation income stream as they satisfied the requirements of subparagraph (b)(i) and (ii) of that definition in subregulation 995-1.01(1) of the ITAR. Hence the invalidity benefits paid to Burns are superannuation income stream benefits.

In relation to issue 3, the Court held that the invalidity benefits satisfied the definition of pension in section 10 of the SISA but the rules of the DFRDBS did not satisfy the standards of subregulation 1.06(2) and subparagraph 1.06(9A)(b)(iii) of the SISR because they do not ensure the invalidity payments are paid annually for the person's lifetime.

The Court further held that the invalidity benefits paid to Douglas were not a pension that commenced before 20 September 2007.

Accordingly, the Court held that the invalidity benefits were not a superannuation income stream as they did not satisfy the requirements of subparagraph (a)(ii) or (b)(i) and (ii) of that definition in subregulation 995-1.01(1) of the ITAR.

Hence, the invalidity benefits paid to Douglas are superannuation lump sums.

1.

Is the right of indemnity ("the right") property of the trust to the exclusion of non-trust creditors or is the right the property of the bankrupt (personally) and then available to non-trust creditors?

2.

How should the statutory priority afforded to the Commissioner of Taxation, pursuant to section 109(1)(e) of the Bankruptcy Act 1966 (Cth), for Superannuation Guarantee Charge amounts owing, be applied; namely, should the priority be applied to the trust assets alone or to the assets of the trustee, or both?

The Court held that the order of priority of payment was as follows:

1.

Priority trust creditors would receive a distribution from the Trust estate (including Superannuation Guarantee Charge, limited by the statutory cap)

2.

All trust creditors would receive a distribution from the Trust estate (funds permitting)

3.

All priority creditors, with creditors in each s 109 cascading priority were to be treated separately, and would receive a distribution from the personal bankrupt estate, and those creditors from step one who had not had their debts fully discharged would be required to bring into hotchpot should there be any other creditors of equal priority to them

4.

All other creditors would receive a distribution from the personal bankrupt estate (funds permitting) with those creditors in Step 2 being required to bring into hotchpot the distribution received from the trust estate

However, it may also impact on employees of businesses that operate through a trust structure in the event that the business becomes insovlent.

If the priority regime does not apply, those employees may not be able to recover the full amount of unpaid superannuation contributions in the event that their employer becomes insolvent.

The matter provides an opportunity for the Commissioner to seek clarity on the extent of this connection between the use of the land and the actual operations of the business to render the asset as an active asset.

A Decision Impact Statement will be issued by the ATO in due course.