Taxation Laws: Domicile Test Essay


Discuss about the Report for Taxation Laws of Domicile Test.


Case study 1 – Residence and Source:

Under the given case study, it is understood that Fred will be considered for taxable purpose as a resident in Australia. According to case study, it is should be noted that Fred has lived in Australia for a period of eleven months before going back to his native country in England. Hence, the income, which is earned from France during the tenure of his employment in England, will also be considered will also be considered while calculating the tax assessment during his stay in Australia. A significant factor is to be considered while assessing the residential status since it is a complex affair and it is largely dependent upon on the individual private state of affairs (Tanzi 2014). On the other hand, one cannot put pressure on the relevancy of the clarity relating to the subject matter of the residential status and the immigrants achieving appropriate advice in beforehand concerning the particulars of business undertakings or any contracts.

According to the Australian taxation laws, an individual who spends a minimum of 183 days in Australia will be liable for tax. Hence, Fred will be considered for tax since he stayed in Australia for a period of eleven months. A migrant concerning their terms related to migration visa dwelling in Australia for a period of 183 shall be intermittently held liable for tax. The case study also highlights that Fred also bought a land for a period of 12 months on lease along with this he also stayed with his wife prior to returning England due to poor health. As mentioned under the agency of Australian tax, a person is spared on the condition when he satisfies the commissioner of tax that his original place of dwelling is in Australia. Therefore, the individuals must also satisfy the Australian tax commission agency that he or she does not have any intentions to take up Australian residency.

The taxations rulings of Income Tax 2650 under the domicile test also determines that the country or nations where an individual is originally born unless an individual migrates himself to some other nation or country and select his domicile of his personal choice. As it is mentioned in the case study that Fred is known to be a resident of England who is looking into the prospect of setting up his business in Australia (Saez et al. 2012). Though the case study does not reflects the terms of stay in Australia regarding his number of days but the study also reveals that he took house for a time frame of twelve months before deciding to return England on account of poor health.

Under the given study, the residential status of Fred is determined on the basis of his stay in Australia and the residential test conducted provides the truth that the liability for tax is dependent on his tenure of stay. The study also takes into the consideration that if the individual returns to his native county those trips will be determined in terms of regularity period. Therefore, form the given case study Fred is liable to be taxed under the Income Tax Assessment Act 1997 given his business ties and family in Australia.

Case study 2 Ordinary Income

I. Californian Copper Syndicate Ltd v Harris (Surveyor of Taxes) (1904) 5 TC 159

The above stated study considers the issues, which is related to the realization of capital assets and whether such proceeds derived from the sale of property can be exploited for minerals under the ordinary income or capital.


Tax rulings have offered the directions concerning the subjects which is subjected to profits yielded resulted from isolated transactions are considered as income and are assessed under the subsection “25(1) of the Income Tax Assessment Act 1936” (Woellner et al. 2016). The term Isolated transaction can is understood as;

Transactions or business dealings which is occurred outside the ordinary business circumstances related to a tax payer executing the activities of trade and commerce and;

Certain business transactions recorded under the non-business taxpayers.


The outcomes which is generated from the above state case states that the tax payer was assessable on the circumstances which is related to the profits which occurred from the sale of land and those profits were treated as income. It is evident from the case study that the taxpayer was endeavoring to yield profits from sale proceeds of land. From the given case study it is evident that the intentions of the tax payer was clear as it never had the required amount of funds for the mining of land (Poterba 2014). As stated by the lord of Justice, that a well-defined principles was considered while dealing with the questions related to the assessment of Income tax. The study defines that the owner of the ordinary investment decided to realize it in order to achieve higher price when the tax payer originally obtains it in enhanced price and not the profit as stated under “Schedule D of the Income Tax Act of 1842”, which is measurable for income tax purpose.

II. Scottish Australian Mining Co Ltd v FC of T (1950) 81 CLR 188

The case of Scottish Australian Mining takes into the consideration of the issues, which is related to the incomes generated from business, and the mining corporation has put such sub-division of land into the use. The assessment constitutes regarding the ordinary income or it was just the capital realization.


Capital gains tax: Any capital gains or loss if made on the occurrence of CGT event regarding any gains arising from capital assets. As stated under section “108-5 (1) of the income tax assessment act 1997 a capital gains is defined as any king of “property or a lawful equitable right” which is not considered as property (Tiley and Loutzenhiser 2012).


The outcomes of these case states that the decision passed by the authority can be long cited for the proposition that a meager realization concerning an assets in an enterprising way was related to capital. According to the common law, the hearing of the case took almost two long days to hear and the outcome of this case was determined after six days of the hearing proceedings (Tiley and Loutzenhiser 2012). The decision precisely states that the there will not be any extended truthful enquiry into the actions of the taxpayer or any sort of widespread disputes regarding the accounting disputes surrounding the case. Therefore, the decision passed under this case substantially explains the commercial exercise was treated in the form of capital realization of assets.

III. FC of T v Whit fords Beach Pty Ltd (1982) 150 CLR:

The above mentioned case study takes into the considerations was the taxpayer was assessable on the framework of profits on sale of subdivided land as mentioned under section 25 (1) or section 26 (a) or the tax payer was just realizing the “capital assets”.


According the rulings which is described by the law concerning the case study provides the directions in determination of the proceeds which is generated from the “Isolated transactions” and are considered for income which is assessable under the subsection 25 (1) of the Income Tax Act Assessment Act 1936”. However, the rulings passed by the court does not takes into the considerations regarding the application of section 25 A of the capital gains and capital losses under provision (Part IIIA) or Division of Part III”.


According to the judgements passes by the Gibbs CJ, Mason, Murphy and Wilson JJ, the tax payer will be considered for assessment on the framework of profits yielded from the sale of land which is defined under the section 25 (1). The high court passed its verdicts that the profit had crossed the realization mark concerning the capital assets and the activities, which is related to the execution of business activities in terms of the development of land. Hence, the profits which is generated from the sale of land is assessable under second limb of section 26 (a) for revenues and profits arising out of business undertakings and schemes. Whereas, Gibbs and Mason J specifies that the second limb comes into the operations when section 25 (1) does not considers the profits generated from gross income. The outcomes concerning the case defines that the profits should be considered for calculations by deducting the gross proceeds generated from the sales revenue of land when it was ventured in the taxpayer’s land development business scheme.

IV. Statham & Anor v FC of T 89 ATC 4070

The case of study of Statham and Anor is based on the questions concerning the proceeds which is derived from the sale of subdivided land constituting of the assessable income under section 25 (1) or under 26 (a).


Assessable income: Sales derived from “subdivided land originally acquired” was put into use for the purpose of farming as well as the proceeds generated from the execution of business represented any pure realization of assets.


The federal court in its rulings provided that, the net proceeds yielded from the sale of subdivided land does not consists of the assessable income under section 25 (1) or 26 (a). As stated by the Woodward, Lockhart and Hartigan JJ it is believed that a mere realization of assets on profit does not necessarily consist of taxable income. The court stated that incomes and profit must realize from carrying on a business activities. Hence, merely realizing the assets for profits does not constitute of converting into the business undertakings though the scale of realization activities is considered for determining the nature of business undertaking as stated under (ATC p 4075).

V. Casimaty v FC of T 97 ATC 5135

The case of Casimity v FC takes into the consideration the amount of profit generated from the disposal of parts of property which can be assessed either under section 25 (1) or 25 A”.


The current case study is determined under the sub headings of assessable incomes, which is explains the sub-divisions of land, which is originally obtained and used for farming (Faccio and Xu 2015). The law also raises questions whether the profits generated are proportionately related to the business activities or from just realization of capital assets.


The federal court on the other hand ruled that the profits were not derived from any commercial subdivision of land or from any earning schemes from business undertakings. The court under its rulings provided that the revenue be generated from realization of capital assets of the tax payer. It is understood from the case that the taxpayer has performed the business activities of farming and fencing in collaboration with his wife and sons. The study provides that there was no attempt of any sort of action view from the taxpayer under the partnership account. In addition to this, the taxpayer did not inquire about to claim the business expenses in the form of interest, which is borrowed in order to settle the sub divisional costs (Faccio and Xu 2015). The federal court passed its verdict by saying that action view was acquired by the tax payer with the viewpoint that no profits is assessable in accordance with the first limb as mentioned under section 25 A (1)”. The federal court also indicated that neither the second limb nor the sub section have any applicability since sales did not occurred while executing any profit undertaking scheme.

VI. Moana Sand Pty Ltd v FC of T 88 ATC 4897

The above stated study raises the questions whether section 25 (1) or 26 (a) is implemented to consider the tax payer assessable earnings in relation to the amount received by the tax payer after deducting the cost to generate the profits which is derived from the sale of land.


The rulings used under this case study provide the guidance while assessing the profits arising from the isolated income. The rulings questions whether the profits are assessable under section 25 (1) of the “Income Tax Assessment Act 1936” (Harding 2013). Moreover, it is important to denote that the rulings does not considers the applicability of the “Section 25A of the tax payer’s capital gains or capital losses under the provision of the (Part IIIA) or division 6A of Part III”.


The court in its rulings provides that the amount received by the taxpayer was considered as Isolated transactions. The profit is considered as the earning in terms of ordinary income framework in compliance with the decision passed under the “FC of T v The Emporium LTD 87 ATC 4363 and it is regarded as assessable income as stated under section 25 (1). The case study highlights that the taxpayer acquitted the land to work and subsequently sell off the sand on profit (Harding 2013). The profit, which was derived from the resumption of land by the coast protection board, was still considered as an assessable profit notwithstanding that the taxpayer had initially decided to sell of the land rather than selling off the land when it became mature for subdivision. The court passed its verdict that the surplus earnings was assessable under the second limb of section 26 (a) as it was raised on the profit making undertakings.

VII. Crow v FC of T 88 ATC 4620:

The above stated case study raises the question of applicability of subsection “25 (1) or section 26 (a) of the Income Tax Assessment Act 1936” which operates to includes under the assessable income of the taxpayer profit generated from the sale of land near Hobart.


Assessable income: Sales derived from the sale of land was originally acquired with the objective of farming and the sales revenue generated from the business operations demonstrates capital realization.


The outcomes passed concerning the case was distinguished relating to the property, which is used in the form of mine for longer duration of time for farming business activities. The court passed the verdict that the taxpayer had high borrowings in order to purchase high blocks of land for conducting the activities of farming (Cronin et al. 2013). However, during the latter stages it was stated that the tax payer had sold off some portion of land and the taxpayer was assessable in terms of profit generated as he carried the business operations concerning the land development.

VIII. McCurry & Anor v FC of T 98 ATC 4487

The case raises the questions regarding the profits generated from the disposal of land, which can be assessable under section 25 (1).


Assessable income: The taxpayer is assessed under the section 25 (1) of the income tax assessment act 1936 on the earnings generated from the sale of land as because it was derived from the profit yielding scheme of business undertakings. Perhaps it must be noted that this section does not apply in regard to the sale of property acquired on or after 20 September 1985 (Cronin et al. 2013).


The case study highlights that the taxpayers were brothers and utilized their funds obtained from bank together to procure a land on which their old house stood. The taxpayer in the meanwhile detached their old residence, which provided them the opportunity to build three townhouse on the same land. The court on the passed the verdict that if any property has been obtained during the course of business or commercial dealings with the aim of obtaining profit from the development of land (Reforms et al. 2014). Hence, the court ruled under section 25 (1) that the taxpayer entered into the commercial dealings. Therefore, the taxpayer was not carrying on business activities and the profits gained must be assessable under the commercial dealings.

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