SALES TAX ASSESSMENT ACT 1992 (Repealed)

PART 8 - AVOIDANCE SCHEMES, NON-ARM'S LENGTH TRANSACTIONS ETC.

Division 1 - Avoidance schemes

SECTION 93 (Repealed by 101 of 2006)   OBTAINING A TAX BENEFIT UNDER A SCHEME TO WHICH THIS DIVISION APPLIES  

93(1)  [Obtaining a tax benefit]  

A taxpayer obtains a tax benefit under a scheme to which this Division applies that has been entered into or carried out by a person or persons (whether or not the taxpayer) if:

(a)  the taxpayer has obtained a tax benefit that:

(i) the taxpayer would not have obtained if the scheme had not been entered into or carried out; or

(ii) the taxpayer could reasonably be expected not to have obtained if the scheme had not been entered into or carried out (taking into account, among other relevant matters, any things that did not actually happen but could reasonably be expected to have happened if the scheme had not been entered into or carried out); and

(b)  having regard to the matters set out in subsection (2), it would be concluded that the scheme was entered into, or carried out, by all or any of the parties for the purpose or dominant purpose of obtaining a tax benefit for any person (whether or not that person is the taxpayer and whether or not that person is one of the parties).

93(2)  [Matters to have regard to]  

For the purposes of paragraph (1)(b), the matters to have regard to are:

(a)  the manner in which the scheme was entered into or carried out;

(b)  the form and substance of the scheme;

(c)  the time at which the scheme was entered into and the length of the period during which the scheme was carried out;

(d)  the result in relation to the operation of the sales tax law that, but for this Division, would be achieved by the scheme;

(e)  any change in the financial position of the taxpayer that has resulted, or may reasonably be expected to result, from the scheme;

(f)  any change in the financial position of any person who has, or has had, any connection (whether of a business, family or other nature) with the taxpayer, being a change that has resulted, will result or may reasonably be expected to result, from the scheme;

(g)  any other consequence for the taxpayer, or for any person referred to in paragraph (f), of the scheme having been entered into or carried out;

(h)  the nature of any connection (whether of a business, family or other nature) between the taxpayer and any person referred to in paragraph (f);

but the matters do not include the actual purpose for which any person entered into or carried out the scheme.

93(3)  [Application of Division]  

This Division applies to:

(a)  a scheme that was entered into after 26 May 1992; or

(b)  a scheme that began to be carried out after 26 May 1992 (not including a scheme that was entered into on or before 26 May 1992).

93(4)  [Definitions]  

In this section:

``carrying out'' includes carrying out together with one or more other persons;

``dominant purpose'' , in relation to several purposes, means a purpose that is dominant when compared to all the remaining purposes taken together;

``scheme'' includes:

(a)  an arrangement that is not legally enforceable;

(b)  a course of conduct;

(c)  a unilateral scheme or course of conduct;

``tax benefit'' means:

(a)  any reduction in liability to tax; or

(b)  any increase in an entitlement to a credit.