Deductibility of payment made to extinguish a liability under Australian Taxation Law

This article discusses the deductibility of payments made to extinguish a liability under Australian Taxation Law. It examines Section 40-880 of the Income Tax Assessment Act, 1997, Taxation Ruling TR 96/23, and landmark cases such as Sun Newspapers Ltd v FCT, Californian Copper Syndicate v. Harris, and Myer Emporium v. Federal Commissioner of Taxation. The article concludes that if the expenditure incurred by the taxpayer was for producing an asset or advantage of a lasting nature, it would be considered as capital expenditure. However, voluntary payments made under no obligation and without any expectation of return or benefit are not deductible.

AUSTRALIAN TAXATION LAW
Issue
Can the taxpayer claim a deduction for a payment made to extinguish a liability?
Law
Section 40-880 of the Income Tax Assessment Act, 1997 (ITAA, 1997)
Taxation Ruling TR 96/23
John Fairfax & Sons Pty Ltd v. Federal Commissioner of Taxation (1959) 101 CLR 30
GP International Pipecoaters Pty Ltd v. Commissioner of Taxation (1990) 170 CLR
124
Californian Copper Syndicate v. Harris (Surveyor of Taxes) (1904) 5 TC 159)
Myer Emporium v. Federal Commissioner of Taxation (1987)
Anglo-Persian Oil Co. Ltd. v Dale (1932) 145 L.T at 262.
Argument
While arriving at the historic judgement in this case between Sun Newspapers Ltd. and
Associated Newspapers Ltd. v. Federal Commissioner of Taxation (1938) 61 CLR 337;
(1938) 5 ATD 23; (1938) 1 AITR 403 (commonly referred to as Sun Newspapers Ltd v
FCT), the Honourable Judge Dixon relied mainly on Section 40-880 of the ITAA, 1997,
as per Sadiq, (2017). As per this statute, and I quote –
“The object of this section is to make certain business capital expenditure deductible
over 5 years, or immediately in the case of some start-up expenses for small businesses,
if:
(a) the expenditure is not otherwise taken into account; and
(b) a deduction is not denied by some other provision; and
(c) the business is, was or is proposed to be carried on for a taxable purpose.”
Unquote.
Dixon J in his historic judgement stated that the purpose of the taxpayer did not fulfil
any of the three prepositions stated in the section. He cited the following criteria for
arriving at his judgement.
 Character of advantage sought –

What advantage did the taxpayer get?
Was it a one-off or did it have a lasting impact on the business structure of
taxpayer?
 Manner in which it was to be used –
Was the taxpayer going to continue and rely on the benefit?
 Means adopted to obtain it –
Was it a periodical payment or was it a one-off payment for future use?
In order to consolidate his criteria, Dixon J cited the case of Californian Copper
Syndicate v. Harris (Surveyor of Taxes) (1904) 5 TC 159) in which it was held that the
amount received was in nature of income as the taxpayer always intended to sell the
land, albeit in pieces, for making a profit and this is also corroborated by the fact that
the taxpayer did not have sufficient funds for mining, as per Sadiq, (2017).
This is also established by sections 6-10 and 8-1 of ITAA, 1997 which state that if a
gain has been realised from an asset and this was done by the taxpayer with a profit
making motive, it is an operating income. This is also corroborated by Myer Emporium
v. Federal Commissioner of Taxation (1987) where it was established that the profits
made by the taxpayer under the contracts was assessable as ordinary business income as
it was an isolated business transactions entered by the taxpayer with the intent of
making a profit, states Sadiq, (2017).
Conclusion
In the commercial field of finance, the distinction between deductible expenses and
capital expenditure is the most critically and widely discussed topic, both at the
accounting as well as the judicial level. Taxpayers, in order to reduce their tax liability
do make an attempt of claiming an expense as ‘deductible’ over a period of time which
may be spread over three to five accounting years. The authorities have been opposing
such moves by businessmen and courts have been delivering judgments, some of which
have become milestones and are referred to by other judges dealing in similar cases.
The judgment by the honourable judge Dixon being cited in this case study

If the expenditure incurred by the taxpayer was for producing an asset or advantage
which was of a lasting nature and would have benefitted the organisation or its profit-
earning structure, then it would have been considered as a capital expenditure under the
aegis of s40-880 as had been stated by Rowland J in his judgement on Anglo-Persian
Oil Co. Ltd. v Dale (1932) 145 L.T at 262.
However, in the case of Sun Newspaper Ltd. v FCT, the payment which the taxpayer
made was a voluntary payment and was made under no obligation and did not expect
any return or benefit from either the company or its creditors. The payment was also not
made with the intent of altering the profit-making structure of the company. Although
the taxpayer intended to wound-up the company, the fact is not established that the
payment had a connection with the demise of any profit-making structure of the
company.
LIST OF REFERENCES
Sadiq, K. (ed) (2017) Principles of Taxation Law. Thomson and Reuters, Sydney.
John Fairfax & Sons Pty Ltd v. Federal Commissioner of Taxation (1959) 101 CLR 30
GP International Pipecoaters Pty Ltd v. Commissioner of Taxation (1990) 170 CLR
124
Californian Copper Syndicate v. Harris (Surveyor of Taxes) (1904) 5 TC 159)
Myer Emporium v. Federal Commissioner of Taxation (1987)
Anglo-Persian Oil Co. Ltd. v Dale (1932) 145 L.T at 262.