Taxable Income of Progress Payments

This assignment examines the tax implications of progress payments received by Earnest Pty Ltd. It explores the concept of assessable income under Australian taxation law, specifically focusing on section 25(1) of the ITAA 1936 and the case of Federal Commissioner of Taxation v. Australian Gas Light Co (1983). The analysis considers both cash and accrual basis accounting methods to determine if the progress payments constitute taxable income for Earnest Pty Ltd.

Running head: TAXATION LAW
Taxation Law
Name of the Student
Name of the University
Authors Note
Course ID

1TAXATION LAW
Table of Contents
Answer to question 1:.................................................................................................................2
Answer to question 2:.................................................................................................................4
Answer to question 3:.................................................................................................................6
Reference List:...........................................................................................................................9

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Answer to question 1:
The taxation rulings of TR 2007/9 lay down that if an item used to create a particular
atmosphere or ambience for premises used in café, motel or retailing business results in being
considered as the item of plant1. Whether an item is an item of plant is relevant in
determining whether an allowable deduction will be available either under division 40 for a
depreciating asset or under division 43 relating to the capital works of the income tax
assessment act 1997. According to the taxation rulings of TR 2007/9 deductions for capital
expenditure on the assets related with the premises used in the type of the business will be
usually considered for deductions under the Division 40 for the depreciating assets or the
division 43 for the purpose of capital works2.
The current case study is concerned with the determination of the capital gains tax
consequences from the sale of land and the theatre building. However, prior to sales
Cassandra Pty Ltd incurred capital works expenditure on the construction of theatre building.
Division 43 lay down that a deduction for construction expenditure on the capital works used
for other works rather than residential accommodations given that the capital works started
after the 19th July 1982 and the capital works is put into use to generate taxable income. In the
present context it is evident that Cassandra Pty Ltd incurred an expenditure on construction of
building and division 43 is applicable in the case of Cassandra Pty Ltd3. Division 43 is
applicable for the capital works that are carried on the buildings or structure improvements.
1 Braithwaite, Valerie, ed. Taxing democracy: Understanding tax avoidance and evasion.
Routledge, 2017.
2 Cao, Liangyue, et al. "Understanding the economy-wide efficiency and incidence of major
Australian taxes." Treasury WP 1 (2015).

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An item that becomes the portion of the premises does not fall within the meaning of
the plant unless in the cases where the premises are considered to be plant4. When there is a
circumstances that an item on the premises does not becomes the part of the premises and
even do not falls in the comprehensive meaning of the plant it may come inside the ordinary
meaning of the plant where the functions that is performed by the premises to attract the
customers. Additionally, the premises should definitely be the element of service which the
business provides and for which the customers are prepared to pay.
As held in the case of Wangaratta Woollen Mills and ICI reflects the closeness of
the relationship which should prevail between the functions that is performed by the item
along with the particular income earning capacities of the taxpayer for the item of plant to be
considered as the item of plant.
Additionally, it has been found that Cassandra Pty Ltd had incurred an expenditure on
the demolition of the derelict building. According to the ATO ID of 2002/633 a capital gains
or capital loss originates from the CGT event C1 in the section 104-20 of the Income Tax
Assessment Act 1997 in the event of demolition of the dwelling given that no form of capital
gains proceeds are received5. The effect of the cost base rules in subsection 112-30 (2) and
3 Lang, Michael. Introduction to the law of double taxation conventions. Linde Verlag
GmbH, 2014.
4 Miller, Angharad, and Lynne Oats. Principles of international taxation. Bloomsbury
Publishing, 2016.
5 Davison, Mark, Ann Monotti, and Leanne Wiseman. Australian intellectual property law.
Cambridge University Press, 2015.

4TAXATION LAW
(3) of the ITAA 1997 the capital proceeds rule in the section 116-25 of the ITAA 1997
represents that no capital gains or capital loss originates at the time of CGT events happens if
no form of capital proceeds are received for it. In the present case it is understood that the
Cassandra Pty Ltd has incurred a demolition expenditure and the taxpayer in the present
context does not received any capital proceeds for the demolition of the building.
However, in the later stage it is found that Cassandra Pty Ltd sold the land and theatre
building for a sum of $3,000,000 and this has resulted in capital gains. In accordance with the
subsection 104-20 (3) of the ITAA 1997 it lays down that an individual makes the capital
gains from the CGT event will result in capital gains if the proceeds were more than the
destruction or more than the cost of the asset. Therefore, from the given context it can be
stated that Cassandra Pty Ltd made a capital gain from the sale of land therefore as a result of
this Cassandra Ptd Ltd would be held liable for the capital gains tax on the sale of asset.
Answer to question 2:
The Taxation ruling of TR 2004/16 lay down that an individual can claim allowable
deductions either under the division 40 relating to the depreciating assets or under the
Division 43 relating to the capital works of the ITAA 19976. Deductions for capital
expenditure on the assets would be allowable for the property that are under the division 43
related to the capital works. In the present context it can be stated that the Oscar Pty Ltd
incurred expenditure of $500,0000 for the capital works.
In terms of the present case of the Oscar Pty Ltd division 43 lay down that an
allowable deductions will be available relating to the construction expenditure on the capital
works along with the buildings that is used by the taxpayer. Since the Oscar Pty Ltd incurred
expenditure on the structural improvements in order to protect the theatre building from the
any further earthquakes shocks division 43 is applicable for the expenditure incurred on the
6 ROBIN, H. AUSTRALIAN TAXATION LAW 2017. OXFORD University Press, 2017

5TAXATION LAW
capital works of the premises that is used to generate the assessable income7. The division is
applicable since Oscar Pty Ltd incurred building or structural improvements that is related to
the improvements of the buildings.
As per the division 43 if taxpayer incurs expenditure on the on the property that is
related to capital works then a deductions will be available unless it is found that the item is
considered to be plant or depreciating asset and other conditions of the Division 40 are met.
Capital works are generally used to generate assessable income that also includes the
buildings and structural improvement are usually written off over the longer period of time
other than the depreciating assets8. The capital works deductions are available for the
buildings or extensions or alterations or making any kind of improvements to the building.
Capital works also comprises of the structural improvements carried out on the
retaining walls. As evident the capital works are carried out by Oscar Pty Ltd for the purpose
of strengthening the walls and premises of the theatre therefore a capital works expenditure
would be available to the company. As held in the case of Quarries Ltd v FCT (1961) an
item might be regarded as a component of depreciation deductions even though it is not
considered to be plant and might be regarded as the article under the section 54 of the ITAA
19979. As evident from the current case study of Oscar Pty Ltd an item that is used to create a
7 Barkoczy, Stephen, et al. Foundations Student Tax Pack 3 2016. Oxford University Press
Australia & New Zealand, 2016.
8 Snape, John, and Jeremy De Souza. Environmental taxation law: policy, contexts and
practice. Routledge, 2016.
9 Anderson, Colin, Jennifer Dickfos, and Catherine Brown. "The Australian Taxation Office-
what role does it play in anti-phoenix activity?." INSOLVENCY LAW JOURNAL 24.2
(2016): 127-140.

6TAXATION LAW
particular atmosphere or ambience for premises that is used to carry out the functions of the
business will fall inside the ordinary meaning of the plant for the business to attract
customers.
Furthermore, the element of premises is considered to be a definable element in the
service that is provided by the business and for which the customers are willing to pay10.
Therefore, Oscar Pty Ltd will be able to claim allowable deductions in order to produce
assessable income and as a result of this the expenditure that is incurred by the Oscar Pty
would be considered as the allowable deductions. The reason for considering it to be an
allowable deduction is that the improvement on the building that is carried out by the Oscar
Pty Ltd was for improvement of the premises and will be considered to be an allowable
deduction because it qualifies for the capital works expenditure.
Answer to question 3:
The current scenario is based on the determination of the assessment of the income
derived from the instalments payments by Earnest Construction Pty Ltd in relation to its
contract with Oscar Pty Ltd11. Income that is recorded at the time they are received they are
termed as the cash basis. Income that is recorded at the time when they are earned they are
known as accrual basis. As held in the case of J Rowe and son Pty Ltd v FCT it lays down
that lay by sale would be treated as assessable income in terms of the accrual basis however
the cash receipts are considered as the cash basis and would be earned as the received.
10 Coleman, Cynthia, and Kerrie Sadiq. Principles Of Taxation Law 2013.
11 Kenny, Paul. Australian Tax 2013. Chatswood, N.S.W., Lexisnexis Butterworths, 2013,.

7TAXATION LAW
As held in the case of Arthur Murray Pty Ltd v FCT income that are non-
refundable are generally treated as the income and the amount that is received on the cash
settlement that is derived under section 6-5 of the ITAA 1997 they are treated as the income
and will be included in the assessable income of the taxpayer12. As it has been defined under
the Subsection 6-5 of the ITAA 1997 it lay down that assessable income of the taxpayer that
is a resident of Australia which is derived directly or indirectly from all the sources at the
time of the income year.
As held in the case of Brent v. Federal Commissioner of Taxation (1971) the
federal court has stated that the word derived is generally not regarded as equal to the
meaning earned or derive within the ordinary sense13. Additionally, the commissioner of
taxation in the case of Trust and Agency company of South Australia v Federal
Commissioner of Taxation (1938) defined appropriate method of accounting14. The
commissioner specified that unless the act lay down any kind of specific provision on the
point the sum of revenue or income that is generated should be determined in the ordinary
meaning of the business and appropriate method of income must be adopted to provide a true
and fair view of the income of the taxpayer.
Considering the examples of Arthur Murray Pty Ltd v FCT (1965) income
received for work which his yet to be performed the federal commissioner has held down that
it will not be considered to be assessable since it is not viewed as derived under section 25
12
13 Morgan, Annette et al. A Practical Introduction To Australian Taxation Law. North Ryde
[N.S.W.], CCH Australia, 2013,.
14 Woellner, R. H. Australian Taxation Law 2012. North Ryde [N.S.W.], CCH Australia,
2013,.

8TAXATION LAW
(1) of the ITAA 1936. As held in the case of Federal Commissioner of Taxation v.
Australian Gas Light Co (1983) it has been held that income derived based on the accrual
basis under the subsection 25 (1) of the ITAA 1997 when a debt of recoverable nature is
created and the taxpayer under such kind of circumstances are not required to undertake any
form of steps to make an entitlement for payment. In the present case study, it can be defined
that the progress payment cannot be considered as the income15.
The reason for not considering the payment as the assessable income because the full
payment has not been received by the Earnest Pty Ltd and it will be liable for income tax
once the entire amount is received16. As understood in the present case of Earnest Pty Ltd
income would be usually derived under two basis namely cash and accrual basis. Given the
circumstances that cash basis is adopted then the income will be derived upon the receipt of
part payment in the form of cash and the same will considered for taxable purpose.
Reference List:
Anderson, Colin, Jennifer Dickfos, and Catherine Brown. "The Australian Taxation Office-
what role does it play in anti-phoenix activity?." INSOLVENCY LAW JOURNAL 24.2
(2016): 127-140.
Barkoczy, Stephen, et al. Foundations Student Tax Pack 3 2016. Oxford University Press
Australia & New Zealand, 2016.
15 Woellner, R. H et al. Australian Taxation Law 2014.
16 James, Kieran. "The Australian Taxation Office perspective on work-related travel expense
deductions for academics." International Journal of Critical Accounting 8.5-6 (2016): 345-
362.

9TAXATION LAW
Braithwaite, Valerie, ed. Taxing democracy: Understanding tax avoidance and evasion.
Routledge, 2017.
Cao, Liangyue, et al. "Understanding the economy-wide efficiency and incidence of major
Australian taxes." Treasury WP 1 (2015).
Coleman, Cynthia, and Kerrie Sadiq. Principles Of Taxation Law 2013.
Davison, Mark, Ann Monotti, and Leanne Wiseman. Australian intellectual property law.
Cambridge University Press, 2015.
James, Kieran. "The Australian Taxation Office perspective on work-related travel expense
deductions for academics." International Journal of Critical Accounting 8.5-6 (2016): 345-
362.
Kenny, Paul. Australian Tax 2013. Chatswood, N.S.W., Lexisnexis Butterworths, 2013,.
Krever, Richard E. Australian Taxation Law Cases 2013. Pyrmont, N.S.W., Thomson
Reuters, 2013,.
Lang, Michael. Introduction to the law of double taxation conventions. Linde Verlag GmbH,
2014.
Miller, Angharad, and Lynne Oats. Principles of international taxation. Bloomsbury
Publishing, 2016.
Morgan, Annette et al. A Practical Introduction To Australian Taxation Law. North Ryde
[N.S.W.], CCH Australia, 2013,.
ROBIN, H. AUSTRALIAN TAXATION LAW 2017. OXFORD University Press, 2017.
Snape, John, and Jeremy De Souza. Environmental taxation law: policy, contexts and
practice. Routledge, 2016.

10TAXATION LAW
Woellner, R. H et al. Australian Taxation Law 2014.
Woellner, R. H. Australian Taxation Law 2012. North Ryde [N.S.W.], CCH Australia, 2013,.