A U S T R A L A S I A N TAX TEACHERS ASSOCIATION JOURNAL OF THE AUSTRALASIAN TAX TEACHERS ASSOCIATION 2008 Vol.3 No.2 Postal Address: Atax, Faculty of Law, Edited by UNSW, NSW 2052 Australia Bernadette Smith Phone: +61 2 9385 9562 Email: [email protected] The Journal of the Australasian Tax Teachers Association (JATTA) is a double blind peer review refereed journal. It is normally published annually and subsequent to the Association’s annual conference. The Australasian Tax Teachers Association (ATTA) is a non-profit organisation established in 1987 with the goal of improving the standard of tax teaching in educational institutions across Australasia. Our members include tax academics, writers and administrators from Australia and New Zealand. For more information about ATTA refer to our website (hosted by the University of New South Wales) at www.atax.unsw.edu.au/atta Direct enquiries regarding the Journal to: Associate Professor Margaret McKerchar Australian Tax Studies Program (Atax) Faculty of Law The University of New South Wales NSW 2052 Australia Editorial Board of the Journal of the Australasian Tax Teachers Association (2005-2009): Professor Dale Pinto, Curtin University, WA (Editor-in-Chief) [2005 - 2009] Professor Adrian Sawyer, University of Canterbury, NZ [2005 – 2009] Professor Natalie Stoianoff, University of Technology, Sydney [2005 – 2009] Associate Professor Miranda Stewart, University of Melbourne [2005 – 2009] Associate Professor Andrew Smith, Victoria University, NZ [2005 – 2009] Associate Professor Margaret McKerchar, University of New South Wales [2005–2009] Dr Kerrie Sadiq, University of Queensland [2007 – 2009] Dr Paul Kenny, Flinders University [2007 – 2009] Bernadette Smith, University of Tasmania [2008 – 2009] ISSN: 1832-911X Volume 3 Number 2 published December 2008 Copyright © 2008 Australasian Tax Teachers Association ii TABLE OF CONTENTS FOREWORD ................................................................................................................iv KEYNOTE ADDRESSES RECENT TAX LITIGATION: A VIEW FROM THE BENCH Justice Richard Edmonds...........................................................................................1 DELIVERING FOR THE COMMUNITY: MAKING TAX AND SUPERANNUATION EASIER, CHEAPER AND MORE PERSONALISED Michael D’Ascenzo ..................................................................................................23 ARTICLES SOME PERSPECTIVES FROM THE UNITED STATES ON THE WORLDWIDE TAXATION VS. TERRITORIAL TAXATION DEBATE J Clifton Fleming, Jr., Robert J. Peroni, and Stephen E. Shay................................35 DEVIL’S IN THE DETAIL: NON-COMMERCIAL BUSINESS LOSSES Julie Cassidy ............................................................................................................87 TAXATION OF ILLEGAL ACTIVITIES IN NEW ZEALAND AND AUSTRALIA Ranjana Gupta.......................................................................................................106 THE INFLUENCE OF TAX REFORM ON ENTREPRENEURSHIP AND MANAGEMENT PRACTICES IN THE SMALL BUSINESS SECTOR IN AUSTRALIA Margaret McKerchar and Margaret Drever ....................................129 THE DISTINCTION BETWEEN TAX AVOIDANCE AND TAX EVASION HAS BECOME BLURRED IN AUSTRALIA: WHY HAS IT HAPPENED? John McLaren ........................................................................................................141 TAX POLICY AND GLOBALISATION: A COMPARATIVE CASE STUDY OF RETIREMENT SAVINGS TAXATION Lisa Marriott...........................................164 PART IVA AND WASH SALE ARRANGEMENTS – WILL IT ALL BECOME CLEAR IN THE WASH? Patricia O’Keefe ............................................................189 ROSA’S LAST GASP: THE FINAL STEPS IN SELF ASSESSMENT’S 21 YEAR JOURNEY Michael Dirkis and Brett Bondfield.......................................................202 TAX ACCOUNTING CONCESSIONS FOR SMALL BUSINESS ENTITIES: ONE SMALL STEP FOR BUSINESS Paul Kenny ……………………………………...226 THE APPLICATION OF STANDING IN REVIEWING TAXATION DECISIONS Rodney Fisher ......................................................................................................2511 RELIANCE CARPET CO PTY LTD: WAS THE FULL FEDERAL COURT RIGHT? Maheswaran Sridaran ...............................................................................269 iii FOREWORD The addresses and articles included in this edition of the Journal of the Australasian Tax Teachers Association (JATTA) are based on presentations made at the 20th Annual Conference of the Australasian Tax Teachers Association (ATTA) held on 23rd – 25th January 2008 at The University of Tasmania, Hobart. It was the first time in the 20 year history of ATTA that the conference had been held in Tasmania. The opening day of the conference featured a PhD workshop and papers presented by students, followed by a welcome address by the Chancellor of the University of Tasmania, Mr Damian Bugg, AM QC. The Patron’s Opening Plenary address introduced the afternoon’s teaching workshop sessions. His Excellency, the Honourable William Cox AC RFD Ed, Governor of Tasmania officially opened the 20th Annual ATTA conference on the morning of day 2. The thoughtful insights provided by the Governor during his opening address and indeed on his understandings of the current issues in taxation were appreciated by all. Later that evening His Excellency hosted a reception for delegates at Government House. Following the official opening of the conference, Mr Michael D’Ascenzo, Commissioner of Taxation, addressed delegates. Professor Cliff Fleming from Brigham Young University, Provo, Utah, USA, opened the afternoon’s proceedings on day 2. The Commissioner’s address together with Professor Fleming’s paper and the plenary address delivered the following morning by The Honourable Mr Justice Richard Edmonds, Federal Court of Australia, are all featured in this issue. The highlights of the conference continued throughout day 3, with the final plenary session being presented by Professor Pasquale Pistone, from the Vienna University of Economics and Business Administration. This presentation was based on Professor Pistone’s current award winning research involving a 5-year project on ‘The Impact of European law on the relations with third countries in the field of direct taxes’. A further feature of this year’s conference was the depth and quality of the 70 papers presented in the parallel sessions, culminating in the publication of this edition of peer reviewed papers. The general conference theme “Tax:The Devil’s in the Detail”, used a common idiom to encapsulate something of Tasmania’s uniqueness, the Tasmanian Devil (Sarecophilus harrisii), and the uniqueness and challenges that stimulate intellectual debate and writings in tax. The papers in this issue provide a significant contribution to the literature, specifically through a variety of thought provoking perspectives on the important ‘detail’ synonymous with tax. Finally, the efforts of many contributed enormously to the outstanding success of the 20th Annual Conference and the publication of this edition of peer reviewed papers. Sincere thanks to all those involved, particularly the authors and the anonymous referees for their continued support of ATTA. Bernadette Smith (University of Tasmania, Australia) 19 December 2008 iv Journal of the Australasian Tax Teachers Association 2008 Vol.3 No.2 KEYNOTE ADDRESS RECENT TAX LITIGATION: A VIEW FROM THE BENCH JUSTICE RICHARD EDMONDS∗ I INTRODUCTION The title to this paper is deliberately generic to afford me the licence of making observation and comment on a wide variety of disparate issues arising over the last twelve months which legitimately fall within the rubric of tax litigation. For a start there have been at least two important cases decided by the High Court of Australia – Commissioner of Taxation v McNeil (2007) 229 CLR 656 (McNeil): extending the general law concept of income beyond that which was thought to be its boundary, although, as I foreshadowed in the paper I presented to this Conference last year, that result was not surprising have regard to what was said by the majority in Commissioner of Taxation v Montgomery (1999) 198 CLR 639 (Montgomery); and Bluebottle UK Limited & Ors v Deputy Commissioner of Taxation & Anor [2007] HCA 54 (Bluebottle): which placed a limitation on the Commissioner’s powers to require withholding of amounts on account of income tax liabilities of non-residents which limitation, two judges of the Federal Court had previously independently concluded did not impede the operation of s 255 notices in the way in which the High Court ruled. I shall return to these cases later. There have been a number of important cases decided by the Full Federal Court, at least if one assesses that importance by reference to the success of the losing party in securing special leave to appeal to the High Court: Raftland Pty Ltd v Commissioner of Taxation (2007) 65 ATR 336 (Raftland): a case involving the ‘trust stripping’ provisions of s 100A of the Income Tax Assessment Act 1936 (Cth) (‘the 1936 Act’) where the taxpayer was successful in obtaining special leave to appeal against the orders of the Full Federal Court and which will be heard by the High Court next week; Futuris Corporation Ltd v Commissioner of Taxation (2007) 159 FCR 257 (Futuris): a case involving the validity of an assessment to give effect to a determination made under Part IVA of the 1936 Act where it was found, as a fact, that the Commissioner knew the amount of taxable income and the tax