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An Evaluation of Existing Income Tax Regimes for Mining

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An Evaluation of Existing Income Tax Regimes for Mining AN EVALUATION OF EXISTING INCOME TAX REGIMES FOR MINING PAYMENTS MADE PURSUANT TO THE NATIVE TITLE ACT AND THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT AND OF FIVE PROPOSALS FOR LEGAL REFORM Fiona Anne Martin (Student No 3169705) LLB (Hons) University of Technology, Sydney LLM (Hons) University of Sydney Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy at the University of New South Wales FEBRUARY 2013 Originality Statement I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at University of New South Wales or any other educational institution, except where due acknowledgment is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged. Fiona Anne Martin Date i Acknowledgements I am indebted in the preparation of this thesis to my supervisors, Professor Michael Walpole and Associate Professor Sean Brennan whose patience and generosity with their time, as well as their academic experience, have been invaluable to me. I also offer my thanks to all of those who supported me in any respect during the completion of the project. In particular I give my thanks to Marie-Louise Taylor and Debbie Perik for their unfailingly professional assistance in editing and rereading my work. Many academics both known and anonymous read and commented on my work. In particular Professors Ann O’Connell, Matthew Harding, Chris Evans, Dale Pinto and Rick Krever were extremely generous with their time and advice. I am especially grateful for the support and encouragement of my husband and daughter. Fiona Anne Martin ii Abstract The Topic of this thesis is an evaluation of existing income tax regimes for mining payments made pursuant to the Native Title Act 1993 (Cth) (NTA) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), and of five proposals for legal reform. More specifically my research questions are: With respect to mining payments made pursuant to the Native Title Act 1993 (Cth) (NTA) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA): (a) When are they and when should they be exempt from income tax under income tax law principles? (b) Is the imposition of a mining withholding tax (MWT) justified in terms of tax law and the policy canons of simplicity and equity? (c) As Indigenous Australians currently use charities to receive mining payments and gain income tax exemption should the law relating to charities be amended to overcome legal restrictions that prevent or restrict this use? and (d) What, if any, alternative not-for-profit income tax exempt entities should be available for use by Indigenous Australians that receive mining payments and wish to use them for community and economic development purposes and maintenance of intergenerational benefits? iii Table of Contents Chapter 1: Introduction ................................................................................................. 1 1.1 Background to Research into the Taxation of Mining Payments in respect of Mining Payments paid to Native Title Groups and Traditional Owners ............. 2 1.2 ‘Mining Payments’ as the Subject of my Analysis .................................................. 7 1.3 The Justification for Researching the Income Tax implications of Mining Payments under Mining Agreements....................................................................... 8 1.4 The Uncertainty and Complexity of the Application of Income Tax Principles to Mining Payments .............................................................................. 11 1.5 Research Methodology .......................................................................................... 12 1.6 Significant Limits and Assumptions ...................................................................... 15 1.7 Conclusion ............................................................................................................. 16 Chapter 2: The Application of Income Tax Principles to Mining Payments made pursuant to the Native Title Act 1993 (Cth) ..................................................... 17 2.1 Introduction............................................................................................................ 17 2.1.1 Overview of Native Title ........................................................................... 21 2.1.2 Native Title, Prescribed Bodies Corporate under the Native Title Act and Corporations Representing Native Title Groups .......................... 26 2.1.3 The Native Title Groups ............................................................................ 29 2.1.4 Overview of the Application of the Native Title Act to situations that may involve Mining Payments .................................................................. 30 2.1.5 The Significance of the Prescribed Body Corporate under the Native Title Act ..................................................................................................... 35 2.1.6 Examples of Potential Taxable Income of Native Title Groups and Prescribed Bodies Corporate in respect of Mining .................................... 36 2.1.6.1 Payments where Native Title has been or may have been Extinguished: The Comalco ILUA ........................................... 37 2.1.6.2 Payments in other situations under the Native Title Act ........... 39 2.2 Model Mining Agreements between Mining Companies and Indigenous Australians ............................................................................................................. 42 2.3 The Application of General Income Tax Principles to Mining Payments made to Native Title Groups.................................................................................. 49 2.3.1 What Type of Taxpayer is the Native Title Group? .................................. 55 2.3.2 Income Tax Principles Applied to Model 1 and 2 Agreements ................. 59 2.3.3 Income Tax Principles Applied to Mining Payments that are ‘Royalties’: Models 3, 4 and 5 ................................................................... 65 2.3.3.1 Type 1: Royalties within the ‘Ordinary Meaning’ of Royalty ...................................................................................... 66 2.3.3.2 Type 2: Royalties within the Statutory Definition of ‘Royalty’in s 6(1) ITAA36 ........................................................ 69 2.3.3.3 Type 3: Royalties that are within the ‘Ordinary Meaning’ of Royalty and are also Capital: s 15-20 ITAA97 ..................... 69 iv 2.3.3.4 Type 4: Payments for Royalties that are Capital Gains............. 71 2.3.4 Payments in respect of Mining Agreements that are not Royalties but which may still be Assessable Income ................................................ 71 2.3.5 Mining Payments made to Shareholders of a Resource Company: Model 6 ...................................................................................................... 77 2.4 The Mining Withholding Tax under Division 11C of the Income Tax Assessment Act ...................................................................................................... 77 2.4.1 Federal Government Statements on the Application of the Mining Withholding Tax to Native Title Interests ................................................. 80 2.4.2 Statements by Researchers in the Area of Native Title ............................. 82 2.4.3 A Comparative Evaluation of Differences and Similarities between Native Title Interests and Aboriginal Land ............................................... 83 2.4.4 Summary .................................................................................................... 85 2.5 Capital Gains Tax and Mining Payments .............................................................. 85 2.5.1 Whether Native Title and any Statutory Rights under the NTA or Contractual Rights under ILUAs are Assets for CGT Purposes ................ 88 2.5.2 Capital Gains Tax Event A1: Incorporation of a PBC to hold the Native Title ................................................................................................ 89 2.5.3 CGT Event E1: The Establishment of the Trust to hold the Native Title under the NTA ................................................................................... 93 2.5.4 Roll-over Relief from CGT where an Asset is Transferred to a Corporation ................................................................................................ 95 2.5.5 CGT Event C2: The Redemption, Cancellation etc of an Intangible Asset ........................................................................................................... 95 2.5.6 CGT Event D1: The Application of this Event to Rights Arising from Native Title ..................................................................................... 103 2.5.6.1 ILUAs that Grant Easements ................................................... 104 2.5.6.2 Statutory and Contractual Rights ............................................ 105 2.5.7 Event H2: Mining Payments in respect of an Act, Transaction
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