Taxation Laws And Implications

Income Tax Assessment Act 1997 and its provisions

One of main sources of revenue for a country is the taxes that it collects from its citizens including individual, corporate and other entities. In order to regulate the taxation matters in the country each and every country has respective legislations. In Australia, earlier it was Income Tax Assessment Act, 1936 that used to govern the provisions related to imposition and collection of income tax by the country on tax payers. At present the Income Tax assessment Act, 1997, here in after to be mentioned only as the act in this document, must be referred to in tax related matters in the country. The provisions of the act along with other appropriate rules and regulations shall be followed in dissecting the practical case studies that have been provided in this document.

The first case study provides information about lottery winnings by a person. Whether the annual payments received by the winner of the lottery contest conducted by the Lottery Commission of Australia is income to the recipient is to be discussed here.

As per the Income Tax Assessment Act, 1997 an individual will be liable to pay income tax on the amount of his taxable income calculated as per the provisions of the act. The act further clarified that the taxable income of an individual includes the following:

Income arising from salaries and wages.

Income received from commission.

Business income.

1. Income from profession.
2. Capital gain, in case of capital loss the same shall be deducted only from capital gain amount and not any other heads of income.    
3. Other income (Hoopes, Robinson and Slemrod, 2018).

Australian Taxation Office (ATO) has made it amply clear that a taxpayer must pay income tax as per the applicable rate of income tax, based on his taxable income. In case a taxpayer contravenes with the provisions of income tax as provided in the act then necessary penalty and fines shall be imposed on the amount of income tax liability (Vann, 2016). ATO while defining other income has specified in its website that other income as defined by the act shall include the amount of prizes, awards and winnings from lottery provided the contest was held by any of the following person:

The banker of the taxpayer.

The building society in which the taxpayer

Other investment body of the taxpayer.

Credit union of the taxpayer (White and Townsend, 2018).

However, in case the lottery contest is ordinary lottery contest and drawn by any of the above bodies then the winnings from such lottery contests will not be considered as ordinary income. In such case the winnings from lottery will not be subjected to income tax. 

Implications of using accrual basis accounting on taxable income

‘Set for life’ is a lottery contest drawn by the Lottery Commission of Australia that will pay the winner $50,000 immediately after the declaration of lottery contest. In addition the winner will also receive annual payment of $50,000 each year for next 19 years. The first of which shall be paid immediately after a year from the date of payment of $50,000 immediately after the winner of lottery contest was declared (Somers and Eynaud, 2015).

The above facts make it clear that the lottery contest was not drawn by the Lottery Commission of Australia hence, the annual payment of $50,000 and also the initial amount of $50,000 paid immediately after declaration of winner of the contest will not be taxable in the hands of the winner of the contest or the recipient of the amount (Pistone, 2016).

Conclusion:

ATO has made it clear that the other income shall include lottery winnings provided the lottery contest was held and drawn by the specific persons as mentioned, i.e. the bank, housing society, investment bodies and credit unions of the tax payer. In this case since the lottery contest was held by the Lottery Commission of Australia thus, the winnings is not subjected to income tax. Hence, annual payment of $50,000 is not income to the winner or to the person receiving such payment (Gainsbury, 2017).

Comment: Annual payment is not income.     

2.Assuming that the Corner Pharmacy uses accrual basis of accounting and it is allowed for taxation purpose, the taxable amount of income of the pharmacy is calculated in the table below:

Taxable income of Corner Pharmacy shop is $90,000 as per the accrual basis of accounting. Thus, the pharmacy shop must pay tax on the amount of taxable income as per the rates applicable to such income.

Important notes:

Cash sales: Since the pharmacy follows accrual basis of accounting hence, sales of any kind has to be included in determination of taxable income hence, the amount received from cash sales has been included in determination of taxable income of the shop (Slemrod, 2016).    

Sales on credit card: As mentioned in accrual basis of accounting the amount of revenue is recognized as and when earned. Credit sales has been included to calculate the amount of taxable income of the shop.

Credit card reimbursement: Reimbursement of credit card sales will not be included since credit card sales has already been included to determine the amount of taxable income. Inclusion of credit card reimbursement would have resulted in double taxation of revenue (Trad and Freudenberg, 2018).

Calculation of taxable income from business

Subsidy under PBS scheme: Only the billing amount of PBS is to be considered for calculation of taxable income due to accrual basis of accounting.

Deductible expenditures:  

The Income Tax Assessment Act, 1997 provides that while computing the income from business certain expenditures will be allowed as deduction. The expenditures that have been incurred exclusively to earn business income shall be fully allowed as deduction to ascertain the taxable income from business (Menk, Nagle and Coss, 2017).  

Cost of medicines sold: Cost of medicines sold is calculated by using the following formula.

{(opening stock + purchases) – closing stock} = cost goods sold.

Since cost of goods sold is directly related to the business and incurred wholly for the purpose of business hence, the amount of cost of goods sold has been deducted from the amount of revenue to calculate the taxable income of pharmacy shop.     

Salaries: Corner Pharmacy has three assistants to run the day to day affairs in the working shop. Assuming that the salaries amount of $60,000 is paid to the three assistants, the entire amount shall be deducted from revenue of the business to ascertain taxable income of the pharmacy (Miller-Nobles, Mattison and Matsumura, 2016).

Rent: Assuming the payment of rent is for the business premises, i.e. the pharmacy shop, it shall be deducted fully from business revenue to calculate taxable income of the shop.   

Almost 84 years have elapsed since Lord Tomil decided the case, IRC v Duke of Westminster [1936] AC 1, in favour of the Duke of Westminster. However, the judgement till date remains a landmark judgment due to the impact that was created subsequent to the delivery of the judgment (Goncharov and Jacob, 2014).

The facts of the above case was about payment to gardener. Duke of Westminster used to pay weekly to the gardener for his services. The substantial amount of payment made to the gardener was from after tax income of the Duke. As a result the Duke was unable to take tax benefit on such amount. Later knowing the existing provisions that allows such expenditure to be deducted.  The Duke of Westminster drew up a covenant to pay equivalent amount annually. As a result such annual payment was allowed as deduction to compute taxable income of the Duke. However, Inland Revenue challenged the practice of the Duke of Westminster by alleging that it was a tax avoidance strategy by the Duke of Westminster (Dhaliwal et. al. 2017).

Deductions allowed while computing income from business

Lord Tomlin decided the case in favour of the Duke by stating that a tax payer has the right to make use of the existing tax provisions to minimize the tax liability by using proper means. There is nothing wrong if the tax payer uses valid provisions of the income tax law to minimize the amount of income tax liability of his or her. It would not correct to hold the person liable of tax avoidance practices for using income tax provisions existing in the country would be grossly injustice. The Duke of Westminster has paid gardener for his services and the same is allowed as the payment was made under a covenant thus, the entire payment would be allowed as deduction for computation of Duke’s taxable income (Sikka, 2017).

In Lord Tomlin’s own word, “Every man is allowed to use valid tax provisions to reduce taxes under appropriate acts. Such acts will not be equated with tax avoidance.” Thus, the allegation of Inland Revenue that the Duke of Westminster is involved in tax evasion by drawing up covenant to pay equivalent weekly wages at the end of the services is not correct.

The judgement in the above case made headlines and huge impact at that time paving a way for tax savings by use of existing taxation provisions. Thus, the above case established the principle to differentiate between tax savings and tax evasion at that time. The principle established since then has been used in number of cases to avoid payment of taxes legally (Dridi and Boubaker, 2015). 

At the time when the verdict was given on the above case the ruling was very attractive. Number of cases followed that tried to use the principle laid down in the above case to avoid payment of taxes. However, with passage of time the courts started looking at the overall impact of tax practices by the tax payers to determine whether certain provisions apply to the tax payers. Tax payers started using the complex tax structures to avoid payment of valid income taxes by using the principle of Inland Revenue and The duke of Westminster (Daly, 2017).

Thus, the principle established by the above case not very relevant in Australia at present. The courts as well as income tax authorities now use more restrictive approach to determine the income tax liabilities of tax payers in the country.

There are not one but two issues that must be discussed in this case. These are as following:

1. Firstly, the loss of $40,000 from the rental property jointly owned by Joseph and Jane has to be apportioned between the joint owners of the property correctly.  Thus, the correct proportion such loss between Joseph and Jane has to be determined.
2. In case of capital gain or loss arising from sale of the property in case the rental property is sold by the owners, how would the capital gain or loss to be apportioned between the owners (Mulheron, 2016).     

In case of jointly owned rental property, the Income Tax assessment Act, 1997 provides that income or loss from such property shall be apportioned as per the agreement between the joint owners. The act further states that the agreement must be valid in order to be effective thus, in case an agreement is made between the relatives to apportion profit and loss by coalition to avoid or reduce payment of income tax then such agreement shall not be effective. In such case only the valid terms and conditions of the agreement shall be effective and considered in determining various implications of jointly owned rental property (Mumford, 2017).

Australian Taxation Office (ATO) has further explained that if a property has been brought by two or more parties and they have signed an agreement between themselves to divide income and losses from such property without any prejudice to any one or more of the joint of owner / owners of the property then such agreement shall be valid. It is also possible to have an agreement that provides different terms and conditions for apportionment of profit and apportionment of losses from such property. In such case as long as the terms and conditions are fair and there is no coalition between the joint owners to defeat any provision of law then such agreement shall be effective and valid. In such case the income and losses from such rental property shall be distributed between the joint owners of the property as per the agreement (Johnston, 2017). 

In case of jointly owned properties if an agreement does not provide specifically the proportion of ownership of different owners then it will be assumed for capital gain and loss purposes that the joint owners have equal rights on the property. Accordingly, as per the Income Tax Assessment Act, 1997, the amount of capital gain accruing from sale of such property would be equally distributed between the joint owners (Dixon and Nassios, 2016).

Joseph and Jane are husband and wife, have entered into an agreement to purchase a rental property as joint tenants. They signed an agreement to apportion the profit in 20 to 80 ratio where Joseph would receive 20% profit and Jane would receive 80% profit from the rental property. The agreement has also provided that in case of loss arising from such rental property Joseph would bear the loss completely. It is clear that the agreement is a coalition between the husband and wife to reduce the income tax liability of Joseph as it provides for 100% attachment of loss to Joseph only. Thus, agreement is not effective as far as the distribution of loss is concerned (Woellner et. al. 2016).

In case the property is sold by the joint tenants then the capital gain would be taxed in the hands of both the owners.

Conclusion:

Taking into consideration the discussion above it can be said that the loss of $40,000 from rental property shall be divided in 20: 80 ratio between Joseph and Jane and not to be attached fully to Joseph. This is because the terms and conditions in profit and loss distribution must be same until unless there is justified reason for any difference in such ratios (Eslake, 2015).                      

There is no specific mention of proportion of ownership right on the rental property. In such situation the property belongs to the owners equally. Hence, in case the property is sold then the resultant capital gain shall be apportioned between the two owners Joseph and Jane in 1: 1 ratio in the absence of a specific agreement to such effect.    

References: 

Daly, S., 2017. Tax Exceptionalism: A UK Perspective.

Dhaliwal, D.S., Lee, H.S., Pincus, M. and Steele, L.B., 2017. Taxable Income and Firm Risk. The Journal of the American Taxation Association, 39(1), pp.1-24.

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

Dridi, W. and Boubaker, A., 2015. The difference between the accounting result and taxable income in detecting earnings management and tax management: The Tunisian case. International Journal of Business and Management, 10(7), p.131.

Eslake, S., 2015. Reforming the Australian taxation system: a principled approach. Australian Financial Review Tax Reform Summit. [Online] Available from: https://www.smh.com.au/cqstatic/gjsp9o/Saul-Eslake-AFR-Tax-Summit-2015.pdf [Accessed 27 September 2018]

Gainsbury, S., 2017. A review of secondary lotteries.

Goncharov, I. and Jacob, M., 2014. Why do countries mandate accrual accounting for tax purposes?. Journal of Accounting Research, 52(5), pp.1127-1163. [Online] Available from: https://onlinelibrary.wiley.com/doi/abs/10.1111/1475-679X.12061 [Accessed 27 September 2018]

Hoopes, J.L., Robinson, L. and Slemrod, J., 2018. Public tax-return disclosure. Journal of Accounting and Economics.

Johnston, S., 2017. Multilateral Tax Convention to Prevent Base Erosion and Profit Shifting. Auckland UL Rev., 23, p.384. [Online] Available from: https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/auck23&section=21 [Accessed 27 September 2018]

Menk, K.B., Nagle, B. and Coss, D.L., 2017. The disconnect between tax laws, public opinion and taxpayer compliance: a study of the taxation of gambling winnings. International Journal of Critical Accounting, 9(3), pp.206-227.

Miller-Nobles, T.L., Mattison, B. and Matsumura, E.M., 2016. Horngren’s Financial & Managerial Accounting: The Managerial Chapters. Pearson.

Mulheron, R., 2016. The Modern Cy-près Doctrine: Applications and Implications. Routledge-Cavendish.

Mumford, A., 2017. Taxing culture: towards a theory of tax collection law. Routledge.

Pistone, R.A., 2016. Dreaming an Impossible Dream: A Case for Treating Lottery/Gambling Winnings as Capital Gain. American Journal of Business and Society, 1(3), pp.77-82. [Online] Available from: https://infohub.gambleaware.org/wp-content/uploads/2016/12/70590020.pdf [Accessed 27 September 2018]

Sikka, P., 2017, December. Accounting and taxation: Conjoined twins or separate siblings?. In Accounting forum(Vol. 41, No. 4, pp. 390-405). Elsevier. [Online] Available from: https://www.sciencedirect.com/science/article/pii/S0155998216302356 [Accessed 27 September 2018]

Slemrod, J., 2016. Tax compliance and enforcement: New research and its policy implications.

Somers, R. and Eynaud, A., 2015. A matter of trusts: The ATO’s proposed treatment of unpaid present entitlements: Part 1. Taxation in Australia, 50(2), p.90.

Trad, B. and Freudenberg, B., 2018. A dual income tax system for Australian small business: The experts’ verdict.

Vann, R., 2016. Hybrid Entities in Australia: Resource Capital Fund III LP Case.

White, J. and Townsend, A., 2018. Deductibility of employee travel expenses: The ATO’s guidance. Taxation in Australia, 52(11), p.608. [Online] Available from: https://search.informit.com.au/documentSummary;dn=666904065308957;res=IELBUS [Accessed 27 September 2018]

Woellner, R., Barkoczy, S., Murphy, S., Evans, C. and Pinto, D., 2016. Australian Taxation Law 2016. OUP Catalogue.

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