News item

The potential of s100A ITAA36 to address tax avoidance using trusts

On 17 August 2023, Sonali Walpola, Senior Lecturer in the College of Business and Economics at the Australian National University, presented a hybrid seminar on the potential of s100A ITAA36 to address tax avoidance using trusts and why the Full Federal Court’s approach in Guardian should be treated with caution.Seminar abstractSection 100A of the Income Tax Assessment Act 1936 (ITAA36), enacted in 1979, is an important integrity measure in the trusts arena.The provision applies where a beneficiary is made presently entitled to trust income where the economic benefits relating to the present entitlement are enjoyed by another party. Currently, Section 100A ITAA36 is in the spotlight. The Commissioner relied on s100A in two cases which were the subject of Federal Court appeals in 2023—Commissioner of Taxation v Guardian AIT Pty Ltd [2023] FCAFC 3 (Guardian), where the Commissioner was unsuccessful (at least on s100A) and the ‘BBlood’ litigation (B&F Investments (as trustee for the Illuka Park Trust) v Commissioner of Taxation [2023] FCAFC 89), where the Commissioner was successful. It is centrally argued that the Full Court’s approach to s100A in Guardian is overly narrow, and the decision should be treated with caution due to its failure to consider the most authoritative and salient s100A precedents. While the general anti-avoidance rule in Part IVA ITAA36 was successfully used in Guardian, prior case law shows that s100A is the more robust anti-avoidance mechanism in the trusts arena because it is not hindered by problems that have beset Part IVA, including establishing a dominant tax avoidant purpose. This paper highlights that a broad, non-technical approach to s100A was authoritatively laid down in the only High Court decision on s100A, Raftland Pty Ltd v Commissioner of Taxation [2008] HCA 21 (Raftland), but extraordinarily, the Full Court in Guardian does not once discuss or cite Raftland.

Dr Yousef Kowsar joined Amazon Research Team

We farewelled Dr Yousef Kowsar, our doctoral fellow based at the Computing and Information Systems last month. Yousef has accepted a position at an Amazon Research team based in Melbourne. He will still be an Honorary at the University of Melbourne.Congratulations to Yousef and wishing him all the best in his new role.Postdoctoral fellow, Dr Anjalee de Silva has been awarded WLIA fellowship 2022

Australian Capital Television v Commonwealth: 30 Years of the Implied Freedom of Political Communication

In this seminar, our panellists critically reflected upon the development of the constitutional freedom over the last 30 years and shared their thoughts in relation to its future. The panel consisted of barrister Kathleen Foley S.C., Professor Dan Meagher (Faculty of Business and Law, Deakin University) and Professor Adrienne Stone (Melbourne Law School, University of Melbourne). Professor Michael Crommelin AO (Melbourne Law School, University of Melbourne) chaired the event.In this seminar, our panellists critically reflected upon the development of the constitutional freedom over the last 30 years and shared their thoughts in relation to its future. The panel consisted of barrister Kathleen Foley S.C., Professor Dan Meagher (Faculty of Business and Law, Deakin University) and Professor Adrienne Stone (Melbourne Law School, University of Melbourne). Professor Michael Crommelin AO (Melbourne Law School, University of Melbourne) chaired the event.

Precedent in Tax Law: A Case Study in Empirical Method

How important is case law in establishing precedent to guide taxpayers and the revenue authority? On 17 April 2023, Associate Professor Michael Blackwell discussed this question in a seminar hosted by the Tax Law and Policy Research Program, Melbourne Centre for Commercial Law. Using a data science approach, Associate Professor Blackwell presented some preliminary findings on his research into precedent in tax law.