Taxation Determination

TD 93/39

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 ruling.

FOI status:

may be releasedFOI number: I 1214351

This Determination, to the extent that it is capable of being a 'public ruling' in terms of Part IVAAA of the Taxation Administration Act 1953 , is a public ruling for the purposes of that Part. Taxation Ruling TR 92/1 explains when a Determination is a public ruling and how it is binding on the Commissioner. Unless otherwise stated, this Determination applies to years commencing both before and after its date of issue. However, this Determination does not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of the Determination (see paragraphs 21 and 22 of Taxation Ruling TR 92/20).

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 defination 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. 'Fishing operations' is defined in subsection 6(1) to include operations conducted for the purposes of a business which directly relate to the taking or catching of fish, turtles, dugong, crustacea, oysters and shellfish. We consider that the catching of worms for the purpose of selling the worms to another person does not constitute such operations.

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
11/03/93

Previously issued as Draft TD 93/D12

References

ATO references:
NO UMG0059

ISSN 1038 - 8982

Related Rulings/Determinations:

IT 2301;
IT 2006

Subject References:
beach worming;
primary production.

Legislative References:
ITAA 6(1)

Case References:
Burnside & Marrakai Ltd v. FC of T
(1957) 11ATD 181

R v. Philbey
48 SJ216

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