CGT Events and their Qualities

The issue currently on the consequences of the capital gains taxation under the section “104 of ITAA 1997”

According to “section 102-5 of the ITAA 1997”, taxpayer is required to include Capital gains in to the assessable income. . It is very important to understand  that whether there is any CGT event that has occurred with the taxpayer that has initiated the situation of capital gain or loss. Moreover, it is very necessary to understand the qualities of the asset of CGT (Burkhauser et al., 2015). At the same time, the taxpayer can only make capital loss or gain that actually originates from the context of CGT event under the “section 102-20”. Also under the section “section 104-10 (1)” the CGT event A1 gradually takes place on the disposal of the CGT asset to the taxpayers.

In accordance to the “section 104-25 (1) of the ITAA 1997 a CGT” the event C2 occurs at the time is a possibility of bringing an end on the end and expiry of the assets. On the context of goodwill, the views of the ATO states that CGT events C1 can take place when there is a permanent cease of the business. Even the ruling of taxation that disposes of the goodwill of the business or the interest related to business under the goodwill “ITAA 1936”. On the other hand, a business needs to undergo ceasing on permanent basis as a voluntary act outcome (Lang et al., 2018). In addition, a noteworthy denotation claims that the business have to be ceased permanently for undergoing a temporary closure that would result in any kind of CGT Event C1.

On bringing the context of the court of Law, “FC of T v Murry (1998)” has actually define the definition of Goodwill.. To be precise enough the view expressed that goodwill is actually the main quality is obtained from the various assets of the business. The very existence of goodwill is much reliant on proofing upon the revenue production of the business that is available from the assets, techniques of the business and the location. “Subsection 108-5(2) holds that the CGT assets need to take into account the affect of goodwill (Parker, 2018). In the eyes of the Court of Law “IRC v Muller & Co Margarine Ltd (1901)” holds that the goodwill must be depended on the character and the business nature. Even a payer of tax requires including all the income that is taxable on adding the net capital gain valuation that retrieves from the goodwill selling of the business. 

The Definition of Goodwill and its Dependence on Business Nature

The measure of “taxation ruling of TR 1999/16” strictly explains all the covenants that are restricted and also comprise of all the agreements within the vendor relating to the purchases and the business sale for any separate agreement that does not requires the completion of the exactly similar business. The rules “taxation ruling of TR 1999/16” explains the covenants that exists among the  vendor’s employee of the vendor that is relating to agreement for selling the main business on the agreement that is based on which the agreement of the employees are based on that attracts all the business clients (McGee et al., 2016).

No payment received on the restricted rights for relinquishing is regarded as proper income. Those payments are included that is received for the agreement of not doing something.  According to the case of “Jarrold v Boustead (1964)” the money which the rugby player received for withdrew himself as an amateur was not considered as an income. Similarly in case of “Dickenson v FC of T (1958)” it was cited that the price which was paid to the tax payers of the petrol station for selling only shell products from that particular station for the next ten years. Then from that very same station, they can sell shell products till a radius of 5 miles for the next five years will not be considered as income (Wilkins, 2015).

In the given case the tax payer signs a contract to restrict the business sale which represents as a CGT asset. “section 104-35 (1)” receipts of such agreements or covenants are treated as “CGT event D1”. This CGT event D1 occurs only when a taxpayer creates a legal right to a competent entity. According to “Higgs v Olivier (1951)” an actor was paid money for the decision he took for not producing, directing or acting in another movie for the next 18 months was not considered as an income. Now the receipt of the above case fell under CGT event D1 as it created an agreement of exclusive trade (Frey, B. S., & Feld, 2018).

Now a taxpayer’s residence should qualify as his main residence so that he or she may get the main residence exemption. The taxpayers may have multiple dwellings but it must be understood which form of residence is the main residence and therefore it becomes eligible for exemption. It depends on the matter of fact that which dwelling form is the main residence of the taxpayers (Dixon & Nassios, 2016). The commissioner of taxations views the time period the taxpayer dwells in a residence or the place where the family of the taxpayer used to reside. Now to achieve the entitlement of exemption, some degree of physical occupancy is needed.

Main Residence Exemption and its Entitlement

According to “section 118-110 (1) of the IITA 1997” the taxpayer allowable  to exempt in relation income derived form the capital gains and losses which is originated from CGT event. Exemption is allowed only if the CGT assets are originated from the main residence of the taxpayer all through the ownership period. To a taxpayer partial exemption is also applicable. It is applicable when the main residence of the taxpayer formed a portion of the time of ownership. 

Sale of Shop:

In the context of the study the assesse Amber is the owner of s chocolate shop located in Sydney. After the birth of her child, the assesse decide to sale the shop for $ 440000 which also included the goodwill of $ 280000. In the present situation of Amber, the taxation rule of “TR 1999/16” is applicable. Now referring to the decision made in case of “FC of T v Murry (1998)”, in Ambers business goodwill formed a legal concept. In the end of the Amber’s business a CGT event C1 with respect to “section 104-25 (1) of the IITA 1997” occurred. The sale proceeds of the CGT assets creates an CGT event  C1. Then the end of the assets ended when the taxpayers entered into the contract. The existence and goodwill of Amber’s business proves that her business earned revenues from these assets (Bankman et al., 2017).

Since Amber closed her business permanently, it represents or signifies the outcome voluntary act. That is why it gave rise to CGT event C1. Now according to the citing of “IRC v Muller & Co Margarine Ltd (1901)” the assessable income will hold the proceeds for the CGT assets sales proceeds, which are being earned from the sale of the business and the goodwill of the shop. The capital gains which are made from the sale of the chocolate shop should be taxable under “section 104-10 (1)”.

Restrictive Covenants:

 It is being observed in the later part that Amber is required to sign an agreement which would state that she cannot run the same business within a 20 Km circle for a periode of five consecutive years.. Just by entering this contract,  the assessereceived a lump sum of $50,000. The receipt of this $50,000 would be considered as CGT event D1. In reference to “Jarrold v Bousted (1964)” the money which Amber received by entering this contract would not be considered as an income rather it would be considered as CGT event D1 (Basu, 2016).

Referring to the case of “Dickenson v Fc of T (1958)” the money which was paid to amber in the respect of the agreement which she signed and which stated that she would not start or do a business. In case of Amber the restrictive covenant  of the CGT assets which is created and transferred to the purchaser  in its own rights which is related to the goodwill which is acquired by the purchaser. So under “section 104-35 (1)” the receipt of $50,000 by amber will be recognized as CGT event D1 , therfor ethe income received by Amber will be Treated As CGT event . as the contract of restriction is creating an right of exclusive trade Practise.

Sale of Apartment:

 It is being observed in the later events that in the month of October 2013 Amber received an apartment from her uncle. Her uncle acquired by the 2013 September and the Assesse begin to live there from October 2013. In May a contract was signed by Amber regarding the sale of the apartment. However, ion July 2013 all the settlements of the sale of the resident was done. Since this residence was qualified as taxpayer’s main residence, Amber’s main residence exemption was applicable in this case. Now whether this apartment forms the main residence for amber is dependent on the question of the fact. Since Amber inherited this apartment from her uncle and this was used as main residence by her from October 2013, so the question of the fact was determined (Fuentes-Nieva & Galasso, 2014).

Fringe Benefit Tax Consequences and their Nexus with Taxpayer’s Personal Service

According to the views of the tax commissioner, the time in which Amber has lived in place where the assessable taxpayer family member is livening more than five consecutive years. According to “section 118-110 (1)” Amber is enjoying a proportional portion of the house till the time it is being acquired. .as off now the assesse is eligible for the partial main residence or the mains residence that is received after the inherence of her uncle. . So in reference to “section 118-110 (1) of the ITAA 1997” the entitlement of partial exemption from the capital gains tax can be obtained by the taxpayer since the assets were dwelling and the main residence of taxpayer throughout the period of ownership.

Conclusion:

 It is concluded from the above case study is that the amount of the capital gains which was obtained by Amber from the sale of chocolate shop is held taxable under “section 101-10 (1)”. And according to “section 104-35 (1)” the receipt of $50,000 from the restrictive covenant is considered and treated as “CGT event D1” which cannot be regarded as an income under ordinary cases. A contractual right of exclusive trade agreement was created by this receipt. Amber will be entitled to partial exemption from the capital gains tax after selling her apartment as the assets dwelling and the it was the main residence of the taxpayer during the time of ownership.

The present is based on determining the fringe benefit tax consequences of the taxp[ayer originating from the transaction reported by the taxpayer.

According to “section 6-1 of the ITAA 1997”  income which is personally extorted or which is derived from the personal exertion reflects the income which comprises of the salary income , wage income, contribution to the superannuation funds and others. or any other form of proceeds which is obtained by the taxpayers for the services they render (Cvrlje, 2015). Or from the receipts that is obtained  in the course of employee net might or will get subject to the income tax for the employee’s purpose or the fringe benefit tax for the employer. There should be a nexus with the receipt that is originating from the taxpayer’s personal service otherwise a receipt would not be considered or classified as an income (Edwards et al., 2016).

Now a nexus is published the personal service consists of like salary, wages, commissions and many others that are in the paid to the labor in the course of work as an ancillary payments .or. It is being stated by “section 6-5 of the ITAA 1997” that incomes which are based on ordinary concepts are taxable under “ITAA 1997”. Maximum income that comes to the taxpayers are held as ordinary that falls under “section 6-5 of the ITAA 1997”. Fro instance the   “Scott v Commissioner (1935)” the actual legal meaning of the income is stated. Income should be ascertained based on ordinary concept and mankind’s use as per the commissioner (Schenk et al., 2015). An item of income nature is derived for the tax payers when it comes home. In case of “Dean v FC of T (1997)”, it was held by the court that the retention payment which is made to the employees for agreeing to the fact that they will or must remain employed for twelve months after the takeover. And it was considered an income from the employment.

Salary or wages which are being paid to the employees in a different form are known as fringe benefit. According to the fringe benefit tax, it is a benefit which is being given in relation to the employees (Chapman et al., 2016). This simply means that some benefits are given to someone just because they are employed. “Subsection 136 (1) of the FBTAA 1986”the cars fringe benefits are decleared. The car used by the employee are constituted as a benefit under “subsection 136 (1) of the FBTAA 1986”. According to the fringe benefit tax, it is a benefit which is offered to an employee in respect of the employment.

Usually the car fringe benefit originated when the employer gives an employee a car for private use. Individual employees use the car for their private purpose or when the car is available for the private use. In the recipient’s hand fringe benefit is considered as exempted income for the income tax purpose (Gonzales et al., 2015).

Residual fringe benefit means the private services or facilities that an employee gets just because of the respect of the employment. Residual fringe benefit may include services like travel or professional or manual work or any other use of property. Residual fringe benefit may be regarded as a particular benefit which an employee gets over a period of time. The arrangements of the salary payments are the packages that consists the remonstration payments  to an individual for making an agreement with the employer.(Dowling, 2014). 

Now the benefits originated from loan fringe benefits are when the employers gives loan to the employee at a lower interest rate during the fringe benefit tax year. Lower rate of interest simply means less than statutory rate of interest (McCluskey, W. J., & Franzsen, 2017). The taxable amount of the loan fringe benefit means the differences which would have is accrued in the assessment year if the proceeds are accrued in the current year or the statutory interest  is applied in the understanding and considered interest rate.

In reference to “Moore v Griffiths (1972)” winning from a prize are not considered as an income. But it might be allocate to the income if substantial interest is existing with the income generation of the tax payer.. Now in reference to “Kelly v FCT” from a channel a taxpayer received an award for being the fairest and best play. Now this would be considered as income as this was incidental to the work and employment that was related to his skill (Avi-Yonah, 2015). Likewise, in case of “FC of T v Stone” the policewoman was the taxpayer and the javelin thrower earned his income through endorsement and prizes. The money was held as income since the Taxpayer was assessed for carrying on the professional athlete’s business.

Non-cash benefits may have an appropriate nexus with the personal services but it will not be considered as ordinary income if it is not convertible to cash. In reference to “Payne v FCT (1996)” the court clearly states that the redemption of the frequent work related travel points will be considered as income (Avi-Yonah & Queralt, 2015). On the other hand non-cash, benefits which are considered taxable may fall under the subject of fringe benefit or may fall under “section 15-2 of the ITAA 1997”.

When an employee covers an expense for their employers and the employer repays the employee for the expenses he incurred for the employer, it gives rise to expense payment fringe benefit. The taxable amount in this case is the amount which is being repaid. Now if an employee occurred an expenditure for the employment related duties then that amount would be deducted for the income tax purpose. Usually when the employee incurs an expenditure for the employer then it gives rise to fringe benefit.

Salary Income:

The present case study is on determining the fringe benefit tax consequences of an agent called Jamie who used to work for a real estate company known as Houses R Us. Jamie was provided with a salary of $50,000 as per the agreement of the employment contract had. Now salary receipts represents an income that comes from the personal exertion as per “section 6-1 of the ITAA 1997”. Jamie receives a receipt of $50,000 from the personal services which he provides during his employment is an income which is subjected to income tax (Borrego et al., 2015).

The salary would be considered as an ordinary income in an ordinary situation as per “section 6-5 of the ITAA 1997”.IN reference to “Scott v Commissioner (1935)” salary receipts will be considered as income in ordinary cases or concepts of the “ITAA 1997”. According to the case of “Dean v FC of T (1997)” the salary will be considered as remuneration which comes from the employment (Rogoff, 2017).

Car Fringe Benefits:

Later it was seen that Jamie received a car from his employer for both the private and work usage or purposes. By the virtue of the employment the car which Jamie uses is considered a benefit which falls under “subsection 136 (1) of the FBTAA 1986”. It is a benefit which is offered to the employees in respect of their employment. Jamie used this car for private usage or purposes for both within and outside the working hours of the weekends (Mankiw, 2014).

Residual Fringe Benefit:

In the next  year it has been observed that Jamie had a salary package which included a laptop an mobile that are valuing $ 2300 and $1200 Every year.. The employer gave Jamie entertainment allowances and repaid him or reimbursed him $550 as well. In the present case of Jamie the expenses incurred by the employee for his employer that is the House Rents and the employer repays the employee back then this results in the rise of fringe benefit. Therefore, as per “FBTAA 1986”, Jamie would be liable for fringe benefit taxation (Berns, 2017). 

Later Jamie received a prize since he had achieved the highest number of sales in the last six months that was worth of $4,800. As a reward he got a home entertainment system which was worth the same, that is $4,800. Now according to “Kelly v FCT” case the home entertainment system worth $4,800 would be considered as a non-cash benefit which later could be converted into cash. Yet again this would be considered as an income since it was incidental to the work and environment. AS a reward for his employment services, Jamie got this $4,800. This would be considered as an income since there is sufficient connection that exist with the revenue generating system of Jamie.

Loan Fringe benefit:

It has been understood from the facts of the case that House R Us gives or rather provides their staff with a sum of $100,000 so that they can buy their own house and which is given at the rate of 4% interest rate per year. And Jamie was interested in this offer and was ready to take the loan. So for Jamie a fringe benefit on loan will arise where the interest rate charged by his employer is much lesser than the statutory or benchmark rate of interest (Zucman, 2014). Now if Jamie would consider to take this loan then it will give rise to a loan fringe benefit because it is a loan which is being provided by his employer by charging a low rate of interst is chargeable  in the assessment year.. Now if Jamie opts  to take this loan then the amount of the loan fringe benefit would represent the difference between the interest which have been accrued to Jamie during the period of the fringe benefit year only if the interest charge is charged like the statutory rate of interest.

Conclusion:

It is been concluded that the salary which Jamie has received under ordinary cases or means would be considered taxable as per “section 6-5 of the ITAA 1997”. “Subsection 136 (1) of the FBTAA 1986” constitutes the fringe benefit of the car which Jamie used. Since there are sufficient connection of Jamie with his revenue generating activities, the reward of $4,800 that he got for his employment service would be considered as his income. And lastly Jamie would be held taxable for the expense payment fringe benefit which his employer repaid him 

References

Avi-Yonah, R. S. (2015). Advanced introduction to international tax law. Edward Elgar Publishing.

Bankman, J., Shaviro, D. N., Stark, K. J., & Kleinbard, E. D. (2017). Federal Income Taxation. Wolters Kluwer Law & Business.

Basu, S. (2016). Global perspectives on e-commerce taxation law. Routledge.

Berns, S. (2017). Women Going Backwards: Law and change in a family unfriendly society. Routledge.

Borrego, A. C., Loo, E. C., Mota Lopes, C. M., & Ferreira, C. M. S. (2015). Tax professionals’ perception of tax system complexity: Some preliminary empirical evidence from Portugal. eJTR, 13, 338.

Burkhauser, R. V., Hahn, M. H., & Wilkins, R. (2015). Measuring top incomes using tax record data: A cautionary tale from Australia. The Journal of Economic Inequality, 13(2), 181-205.

Chapman, S., Alpers, P., & Jones, M. (2016). Association between gun law reforms and intentional firearm deaths in Australia, 1979-2013. Jama, 316(3), 291-299.

Cvrlje, D. (2015). Tax literacy as an instrument of combating and overcoming tax system complexity, low tax morale and tax non-compliance. The Macrotheme Review, 4(3), 156-167.

Dixon, J. M., & Nassios, J. (2016). Modelling the impacts of a cut to company tax in Australia. Centre for Policy Studies, Victoria University.

Dowling, G. R. (2014). The curious case of corporate tax avoidance: Is it socially irresponsible?. Journal of Business Ethics, 124(1), 173-184.

Edwards, A., Kravet, T., & Wilson, R. (2016). Trapped cash and the profitability of foreign acquisitions. Contemporary Accounting Research, 33(1), 44-77.

Frey, B. S., & Feld, L. P. (2018). Illegal, immoral, fattening or what?: How deterrence and responsive regulation shape tax morale. In Size, causes and consequences of the underground economy (pp. 27-50). Routledge.

Fuentes-Nieva, R., & Galasso, N. (2014). Working for the Few: Political capture and economic inequality. Oxfam.

Gonzales, M. C., Jain-Chandra, S., Kochhar, M. K., & Newiak, M. M. (2015). Fair Play:: More Equal Laws Boost Female Labor Force Participation. International Monetary Fund.

James, S., Sawyer, A., & Wallschutzky, I. (2015). Tax simplification: A review of initiatives in Australia, New Zealand and the United Kingdom. eJournal of Tax Research, 13(1).

Jimenez, P., & Iyer, G. S. (2016). Tax compliance in a social setting: The influence of social norms, trust in government, and perceived fairness on taxpayer compliance. Advances in accounting, 34, 17-26.

Lang, M. (2014). Introduction to the law of double taxation conventions. Linde Verlag GmbH.

Lang, M., Pistone, P., Schuch, J., & Staringer, C. (Eds.). (2018). Introduction to European tax law on direct taxation. Linde Verlag GmbH.

Mankiw, N. G. (2014). Principles of macroeconomics. Cengage Learning.

Mares, I., & Queralt, D. (2015). The non-democratic origins of income taxation. Comparative Political Studies, 48(14), 1974-2009.

McCluskey, W. J., & Franzsen, R. C. (2017). Land value taxation: An applied analysis. Routledge.

McGee, R., Devos, K., & Benk, S. (2016). Attitudes towards tax evasion in Turkey and Australia: A comparative study. Social Sciences, 5(1), 10.

Muller, A., & Kolk, A. (2015). Responsible tax as corporate social responsibility: the case of multinational enterprises and effective tax in India. Business & Society, 54(4), 435-463.

Parker, H. (2018). Instead of the Dole: an enquiry into integration of the tax and benefit systems. Routledge.

Rogoff, K. S. (2017). The Curse of Cash: How Large-Denomination Bills Aid Crime and Tax Evasion and Constrain Monetary Policy. Princeton University Press.

Schenk, A., Thuronyi, V., & Cui, W. (2015). Value added tax. Cambridge University Press.

Wilkins, R., 2015. Measuring income inequality in Australia. Australian Economic Review, 48(1), pp.93-102.

Zucman, G. (2014). Taxing across borders: Tracking personal wealth and corporate profits. Journal of Economic Perspectives, 28(4), 121-48.