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

First Peoples’ Treaties with Victoria: Jurisdiction

In 2019 the Constitution Transformation Network was asked by the Victorian Treaty Advancement Commission to identify potential powers and matters within the jurisdiction of the State of Victoria which were potentially negotiable within the treaty process.

Meaning of Home

Melbourne Law School, along with Flinders University and Australian National University have been funded by the Australian Research Council to undertake a qualitative research project examining the meaning of home for children and young people after parental separation. Parental separation is likely to result in big changes in home arrangements for children and young people, yet so far, how children and young people think about ‘home’ after parental separation remains unexplored in research.

Tax levies and legal certainty: hendiadys or oxymoron?

On 1 August 2023, Marcello Poggioli, University Professor of International and Italian Tax Law (University of Padova) discussed recent developments in the Italian domestic legislation and in EU law regarding the introduction of a general anti-avoidance clause (GAAR). A key focus of the discussion was whether the codification of the clause and of its procedural aspects may actually lead to a higher degree of legal certainty (and of tax fairness) in tax obligations.

Transition to a Clean Energy Future: The Role of Climate Litigation

This innovative project analysed the capacity of climate litigation in key fossil-fuel producing countries, Australia and the US, to influence regulation so contributing to putting these nations on the path to a clean energy future. This project was funded by the Australian Research Council Discovery Project (DP 130100500) between 2013-2018.