Theory Practice & Law Residence and source and Ordinary Income

Question: Discuss about the Taxation Theory Practice Law. Answer: Residence and source Facts of present case study In the present case structure the residential status of individual is discusses Assesse is Kit permanent resident of Australia Attain citizenship of Chile Due to birth factor Working in Indonesia With the U.S. based company Dependents A wife and two children (residing in Australia) All investments are made in Chile country Do have a residential property owned in Australia Law implacable in this case The concept of tax residency is quite different from the normal residency as depicted by Australian taxation law. The border immigration rules do not apply while referring to the taxation residency. There are certain circumstanced which need to be looked before determining the taxation residency of Kit- There might be a possibility that an assesse can be tax resident without being a citizen of Australia or do have a permanent residency. Alternatively, individual do have permanent residential status but might not be a tax resident. Determination of tax residency might be dependent on certain laws and compliance. The individual has to go through certain test and check to know its tax residential status. This test is also referred as resides test. The assesse will be considered to be resident if he satisfied any of the below mentioned conditions- Domicile test This test look after the fact that where is assesses permanent home or domicile. Until and unless the assesse Kit is able to satisfy the department that he has permanent home in country other than Australia the tax officers will take resident home in which Kits family is residing in Australia into account for domicile test (ATO, 2016). 183 days test If the Assesse kit is staying for more than half of the year in Australia than he would be considered resident for taxation purposes. Kit does not fall in 183 day test as his visit or stay in Australian nation is less than 183 days in the previous year for the purposes for the tax calculation (ATO, 2016). Superannuation test This test states for the individuals working on the behalf of Australian Government or Commonwealth of Australia, in the countries outside the nation. Assesse kit does not fall under this test as he is working for an U.S. based company (ATO, 2016). Apart for the above test individuals are accessible to certain deduction available under the section 26 AG which provides exemption to the Australian residents attaining certain income from salaries and investments from outside Australia. This exemption is available on the fact that the country has DTAA agreement with the nation in which assesse is earning certain income from different source and paying taxation in respective country. Observations from the above case study If the assesse kit is resident for the taxation purposes in Australia than he shall be liable to pay taxes on the income attained by him around the globe. He shall be liable to pay taxes on both salary and investment income. But if the assesse is not deemed to be tax resident of Australia than nil income shall be chargeable to tax as in the present case study. Ordinary income No. Case laws Respective outcomes or interpretation provided by the court of law 1. Californian Copper Syndicate Ltd v Harris (Surveyor of Taxes) (1904) 5 TC 159 Facts of the case The particular case law organsiation relates with the association formed in the year 1901. The companys MOA states a fact that its objectives are to purchase a land in the California region. Later on with the period of time company sold the land to another company and attained substantial amount of earnings. Department contention The contention of the department is that the income earned by the assesse shall be chargeable to tax as per section 25(1) of the income tax act. High court contention The high court is of opinion that the company was aiming to earn the profit to earn the profits from the sale of land starting from initial period. As indicated by the companys financials it has been reported that the organisational funds were never enough to do the mining job. Ultimate aim of the company is enter into trading transaction related to land and earn the substantial profit. Therefore the contention of the department was held correct (Manyam, 2011). 2. Scottish Australian Mining Co Ltd v FC of T (1950) 81 CLR 188 Problem related to case law Tax payer in the current case was holding a piece of land with aim and objective to perform the mining business. Area of the land was 1771 acres. By the early 1920s the mining business has been winded up and company worked out in the process of selling the land. To bring the land to most advantageous situation roads and public welfare institutions were developed (Jade, n.d.). Department contention The commissioner of income tax is of opinion that the profit attained by the development of land will be taken into account of taxable income High court contention The court of law is of view that all the development activities are done to bring the land in a situation that it certainly can be sold off. There is no profit on development activities (Jade, n.d.). 3. FC of T v Whitfords Beach Pty Ltd (1982) 150 CLR Problem of current case law Assesse in the current case law acquired certain land with the aim and objective to initiate fishing business. Later on the enterprise was sold by promoters of the group. It was sold to some infrastructure companies with the intention of land development and attains certain amount of profit. After making certain development the resulted land was sold at a high profit (Jade, n.d.). Department contention Income tax department contention is to charge tax on such revenue. High court contention The bench of high court headed by three judges Gibbs CJ, Mason Wilson is of view that mere realisation of capital asset while forming an organsiation does not switch the overall purpose even after making land development (Jade, n.d.). 4. Statham Anor v FC of T 89 ATC 4070 Facts of the case In the relevant case law the assesse were the trustees of estate previously owned by a person which is now deceased. The main motto of the owner was to perform a farming activity on the above mentioned land. Later on half of the portion of the land was sold by the deceased person to the firm wholly controlled and managed by its family members. The activity performed by the firm on the above mentioned half piece of land was related to raising cattle and dairy farming. But due to misfortune, this activity suffered loss and the respective member sold the portion of land (ATO, 2005). Department contention Here department is of view that revenue generates out of proceeds of sale of land is an income generated in the ordinary course of business. Therefore such income shall be chargeable to taxation Court contention The court of law is of contention that profits generated in the current scenario are the revenue generated is not an income of ordinary nature. This sale of land is after impact effect of continuous losses incurred by the farm business (ATO, 2005). 5. Casimaty v FC of T 97 ATC 5135 Facts of the case In mentioned case law the conflict among the department and assesse is on land Action view. Assesse was gifted a land from his father and over the period of time due to increasing debt he made certain land development activities and sold a portion of land (ATO, n.d.). Income tax office contention Department of income tax perception is that the assesse should be charged to taxation under section 25 (1) of IT act 1936. Commissioner of income tax that assesse business relates to activity of land sub-division. Decision given by court of law Head judge Ryan J. gave the decision that income earned by the taxpayer shall not be liable to taxation duty under section 25(1) of IT act 1936. As the particular revenue is earned due to selling of part property of assesse (ATO, 2005). 6. Moana Sand Pty Ltd v FC of T 88 ATC 4897 Current problem in the case law The taxpayer in the current case purchased the piece of land. His motive behind that land deal is to enter into a segment of sand trade. Later on government converted the land into rural region and paid the appropriate compensation of $ 500,000 in the two parts. Previously when the assesse claimed that the land was to be utilised for the purpose of subdivision when government of the region desired to mine the particular piece of land. Department contention The commissioner of the Income tax is of the opinion that the particular activity relates with the subdivision and profit generation operation. Therefore the amount earned by the company amounted to $ 500,000 shall be chargeable to taxation. Court contention In the present case law court of law favoured the contention of the department stating that the amount earned by the assesse is in the ordinary course of business and thus referred as ordinary income. It showcases the overall intention of assesse with the future motive to convert the land into a subdivision process and ascertain the profitability (ATO, 2005). 7. Crow v FC of T 88 ATC 4620 Facts of the case Assesse regularly purchases property on the continuous intervals and further enter into activity of sub-division on a repetitive basis. Department contention Department is of view that due to regularity in the nature of the business it showcases the nature of subdivision business of assesse. Federal court contention The court supported the view points of department and gave a decision that transactions were made with the motive to attain certain business profits. An activity performed by the assesse over the period of time represents business income earned by him. Therefore it will be referred as income as per the general concept of income tax act (ATO, n.d.). 8. McCurry Anor v FC of T 98 ATC 4487 Current law problem The relevant problem states about the fact that the taxpayer had converted the residential property for the commercial resale purpose after making little modifications in it. The assesse developed three houses for the resale purpose and advertised for the same. Department contention The contention of the department is that on subsequent sale of the residential units after being utilisation for the personal residential purpose is of the nature of the net profit. The commissioner is of view point that profits are due to normal ascertained income and is an outcome of commercial activity performed by an assesse. Federal court contention The judge of the High court is of the view point that original objective of the assesse is to perform a commercial activity and attain profit form sales. Though the main objective behind the purchase of the property was not an investment purpose rather than it is a business activity. So keeping in mind the dominant activity court ordered decision in favour of department (ATO, n.d.). Bibliography ATO, 2005. ATO Interpretative Decision ATO ID 2005/157. [Online] Available at: https://www.ato.gov.au/law/view/document?docid=AID/AID2005157/00001 [Accessed 17 Aoril 2017]. ATO, 2016. Residency tests. [Online] Available at: https://www.ato.gov.au/individuals/international-tax-for-individuals/work-out-your-tax-residency/residency-tests/ [Accessed 17 April 2017]. ATO, n.d. Taxation Ruling TR 92/3. [Online] Available at: https://www.ato.gov.au/law/view/document?DocID=TXR/TR923/NAT/ATO/00001 [Accessed 17 April 2017]. Jade, n.d. Federal Commissioner of Taxation v Whitfords Beach Pty Ltd. [Online] Available at: https://jade.io/j/?a=outlineid=67040 [Accessed 16 April 2017]. Jade, n.d. Scottish Australian Mining Co Ltd v Federal Commissioner of Taxation. [Online] Available at: https://jade.io/j/?a=outlineid=64663 [Accessed 16 April 2017]. Manyam, J., 2011. Taxation Of Gains From Banking and Insurance Businesses In New Zealand. Revenue Law Journal Volume 20 | Issue 1 Article 6.