bluuebunny/crossref_metadata_2025 huggingface dataset:
The Myth of the Teaching-Research Nexus
Authors: McKenzie Alex , Griggs Lynden , Snell Rick , Meyers Gary D
Published: June 2021

The wild law judgment project is a recent exciting collaborative project involving the rewriting and writing of both existing and hypothetical judgments from a wild law or Earth-centred perspective. In this article, the author reflects upon the performative implications of judicial impersonation and writing and rewriting judgments wildly. The performative nature of the project makes it a valuable teaching resource, in that it thereby offers a different and arguably more powerful challenge to the anthropocentric bias in law than that contained in more conventional forms of academic critique. Drawing upon insights contributed by academics who have used rewritten feminist judgments in their teaching, the author explores the pedagogical value and possibilities in the collection of wild law judgments. In light of the dire existential crisis which currently confronts Earth and its diverse lifeforms, there is a solid argument for ensuring that such an ‘outsider pedagogy’ is effectively incorporated into the mainstream curriculum in law schools.
Adapting Law Lectures to Maximise Student Engagement: Is it Time to ‘Transform’?
Authors: Elphick Liam
Published: June 2021

In recent years, there has been growing concern about poor mental health and wellbeing of both law students and those in the profession. These concerns have been building for the last two to three decades, and have gathered pace in the last few. As concerns about the impact of lawyering on those in the profession have grown, a separate but related set of developments have been unfolding across universities. Universities all over the world have been developing a heightened awareness of student needs, sensitivities and mental health, and have been considering how teaching methods, materials and styles may impact these. As part of this, a number of North American universities have begun to grapple with the question of whether content to which students are exposed in their degree should contain a ‘trigger warning’. A trigger warning is a cautionary note designed to alert students to potentially sensitive material in a syllabus, and which may, in some circumstances, allow them to be exempted from course content. Trigger warnings have generated significant debate in the United States academy. In other parts of the world, such as Australia, these debates are also gathering pace, with the appropriateness of trigger warnings for clinical legal education now also being considered. This paper explores whether trigger warnings are necessary in clinical legal education. This paper unfolds in three parts. First, drawing upon theoretical concerns about the politics of emotion, including ideas from Sara Ahmed and Judith Butler, I consider the philosophical and conceptual aspects of trigger warnings, including the dangers of academics defining which content is ‘triggering’ and which is not. Second, I explore some of the pedagogical implications that would flow from the use of trigger warnings in law clinics. Third, I examine some of the practical implications of the deployment of trigger warnings in clinics. I argue that academics should be cautious about calls to impose trigger warnings in clinical legal education, because they introduce a series of major philosophical, practical and pedagogical problems. I also argue that although trigger warnings may appear, on the face of it, to align with the values that many clinicians would see as being at the heart of clinical legal education, including social justice, respect for clients, minorities and disadvantaged populations, trigger warnings have the potential to paradoxically instantiate power dynamics, to entrench injustice, and to foreclose intellectual curiosity. They also have a series of implications for the ethics and politics of legal practice, some of which I consider to be both substantial and antithetical to the proper practice of clinical legal education.
(Re)Introducing a Closed Book Exam in Law
Authors: Sherry Cathy S , Terrill Leon , Laurens Julian
Published: June 2021

In the past half century there has been a move towards open book examinations in many tertiary institutions. However, the body of research on open book and more traditional closed book exams is diverse and even contradictory in its findings. Law-specific research is almost non-existent. This article discusses the findings of an empirical research project on the introduction of a closed book exam in the compulsory subject Land Law, in an institution that has only used open book exams. The closed book exam and subsequent research were motivated by concerns about the way in which contemporary students do open book exams, particularly after the invention of the internet. The study found that academic concerns about open book exams had some validity, particularly in relation to heavy reliance on notes, including other students’ notes during the exam. The authors conclude that there are advantages and disadvantages to both open and closed book exams, and that both have a role to play in a balanced assessment strategy.
Anti-Doping Suspensions and Restraint of Trade in Sport
Authors: Greenhow Annette
Published: June 2021

The regulator of doping in sport seeks to preserve the spirit of sport and act as the paternalistic protector of the sports participant. But sanctions originally designed to stop drug cheats using artificial performance enhancers in Olympic competition have expanded to cover the use of recreational drugs. There is emerging support for the view that the penalty must fit the crime and that governing bodies must ensure that their legitimate interests outweigh the detriment to the athlete. With doping sanctions imposed for the use of recreational drugs, a restraint of trade claim has prospects of success on the basis of a weakening of the public policy justification for imposing the sanction.
Protecting a Sports Celebrity’s Goodwill in Personality in Australia
Authors: Ng Jenny Swee Gaik
Published: June 2021

A sports celebrity’s fame – her ‘personality’ - is commercially valuable for marketing products and services. Developments in the law suggest there are good reasons for trademarking a celebrity’s image. The law needs to be applied within clearer boundaries and offer more certainty in this area. Today, the practice of trademarking celebrity image complements the tort of passing off in protecting goodwill in a celebrity’s personality.
Sports Marketing in China : an IP perspective
Authors: Ordish Rebecca
Published: June 2021

[Extract] Given the increasing popularity of sports among Chinese consumers and China’s hosting of a number of international sporting events and with the Beijing Olympics just around the corner now giving China centre stage on the sports front, it is no wonder that brand owners are seeking out sports marketing opportunities there. But brand owners must take note of the risks, particularly concerning intellectual property (IP) and brand management. Indeed, China’s sports marketing environment is relatively new, and many players are inexperienced in the complexities of sponsorship arrangements. Moreover, the PRC regulatory environment is still developing, and IP rights remain difficult to enforce. Only companies that manage risks carefully will protect their brands and get the most from their sponsorship marketing dollars.
Restraint of Trade Law in Sport
Authors: Johnson James
Published: June 2021

Landmark sports law cases such as Bosman, Buckley v Tutty and Federal Baseball Club have shaped the organisation of professional sport. This article analyses US, European and Australian cases applying restraint of trade laws. In particular, it examines cases which have dealt with the lawfulness of restraint mechanisms such as the transfer system, player draft and salary cap. The competing interests of the athlete and the club/league are not always easily reconciled. This article concludes that restraint of trade laws in the US favour the club/league, whereas in Europe, they tend towards the interests of the player. Australia’s application of restraint of trade laws to sport is more even-handed than in the US and Europe: it better balances the interests of the players and club/league.
When, where and why does the State intervene in Sport : a contemporary perspective
Authors: Nelson Anneliese
Published: June 2021

[Extract] On Friday 19 November 2004, a violent brawl broke out on the basketball courts of Auburn Hills, Michigan, USA.1 It occurred in the final minute of a game between the Detroit Pistons and the Indiana Pacers at national level. The fight between the players was taken into the stands after one spectator threw water over a player. Bottles, chairs and other debris were thrown onto the courts. The offending players were suspended indefinitely. Furthermore, the police considered pressing criminal charges, primarily because the fight involved spectators. On the playing field this sort of behaviour is of regular occurrence and is usually accepted. A government rarely steps in to charge a player with assault or battery following a violent brawl during a game. Hence, it has been said that this event could be a watershed in American sport; one which could change the way players interact in the future. However, sport is afforded special treatment by both society and the State. One wonders how an isolated event such as this could affect a well established lenient approach designed to accommodate sporting pastimes.
Sports diplomacy in the Australian context: A case study of the Department of Foreign Affairs and Trade
Authors: Murray Stuart
Published: June 2021

For a county with a small population, a remote location and an awkward colonial past, Australia has a remarkable record of success in international sport, so much so that sport is often considered a ‘religion’ in the ‘Lucky Country’. If diplomacy is the business of representation, it would be expected that sport features prominently in Australia’s diplomacy. However, sport oddly languishes under the banner of Public Diplomacy (PD) and is overseen by an unloved, under-resourced and under-represented Department of Foreign Affairs and Trade (DFAT). To exploit the type of vertical, horizontal and plural channels and networks diplomacy can offer in the 21st century, DFAT must remove sport from under the PD banner. Sports diplomacy must be funded by DFAT appropriately and developed to truly represent the place of sport in Australia’s history, culture and society.
Development through sport: Fans and critics
Authors: Ireland-Piper Danielle
Published: June 2021

Sport is used as a tool for development, dispute resolution and reconciliation. The use of sport to meet development goals such as education, health and gender equity has grown into a widely recognised form of development assistance, commonly known as ‘Development through Sport’ (DTS). Further, the right to physical activity is a substantive human right. Nonetheless, the DTS movement has both its fans and critics. This article analyses four common concerns; namely, that DTS is racially constructed, lacking in credibility, poorly coordinated and inadequately evaluated. This article agrees that the DTS movement should improve the delivery and implementation of development goals, but suggests that the criticisms are overstated. They are far outweighed by the benefits of DTS, which meet a number of the United Nations Millennium Development Goals.
Contador, cows and strict liability
Authors: Fridman Saul
Published: June 2021

Extract:The fight to eradicate the use of performance enhancing substances in sport has been the matter of significant public attention in recent years. Perhaps no sport is affected more than the sport of cycling.
Vale, Saul Fridman
Authors: Corkery Jim
Published: June 2021

Leading Sports Law scholar and teacher Saul Fridman passed away on 30 June 2014. He was an influential pioneer in the field. The Journal wishes to record our fond gratitude and respect.
Civil liability of sports participants for sports-related injuries in the Czech Republic
Authors: Kralik Michal
Published: June 2021

This article concerns legal liability of sports participants for sports-related injuries and the approaches adopted by different jurisdictions. In particular, it discusses the Czech Republic’s approach to incidents where a person participating in sports causes injury to another participant. This issue has only recently become the subject of serious study and analysis in the Czech Republic.
Professional sport, work health and safety law and reluctant regulators
Authors: Windholz Eric
Published: June 2021

Workplace health and safety (WHS) regulators have been reluctant to investigate professional sports for breaches of WHS law. Using the Essendon Football Club supplements saga as its primary case study, this article explores this reluctance. It concludes that while aspects of the sporting endeavour justify a pragmatic application of WHS laws, professional sport should not be above and beyond WHS laws and regulators. The reasoning behind WHS regulators’ decisions not to investigate potential WHS breaches in professional sport should be more transparent.
Complex rules and inconsistent interpretation: Duty of care and causation in collision sports
Authors: Dickson Craig
Published: June 2021

In some sports, especially collision games such as rugby, well-intentioned rules, crafted to make the game safer, are being enforced as absolute liability offences. This article argues that an absence of fault stance should be adopted, to allow breaches of some safety rules to be adjudged as strict liability rather than absolute liability offences. If absolute liability is pursued regardless of fault, the coherence and welfare objectives of those safety rules are compromised. Indeed, the long-term viability of collision sports may become questionable.
Regulating Discrimination in Sport: Mandatory Rules or Discretionary Guidelines?
Authors: Davies Chris
Published: June 2021

Sport, like all industries, is subject to domestic discrimination legislation, which in turn is derived from international treaties. Many sports have also developed internal policies, regulations and/or guidelines to help with the governance of discrimination issues. The Australian Football League (AFL) has had to deal with a number of recent racist situations involving spectators. It is suggested that the AFL should consider implementing an anti-racism policy aimed at spectators like the one developed by the International Cricket Council (ICC). Netball’s rules banning pregnant women from competing were held to be discriminatory and illustrate that guidelines providing recommendations can be a better solution for sports than mandatory rules or regulations. The case of Dutee Chand has meanwhile raised the question of whether women with naturally high levels of testosterone should be allowed to compete in women’s events. The decision of the Court of Arbitration for Sport (CAS) that regulations banning her from competing were discriminatory again highlights that guidelines, rather than regulations, can be a better solution for sports. In 2008 the issue of potential disability discrimination was raised when double amputee sprinter, Oscar Pistorius, sought to compete, with the aid of artificial limbs, at the able bodied Olympic Games. While CAS determined it had not been proven that Pistorius had a net advantage, it is suggested that test should have been whether he ran differently to able bodied athletes.
Doping in Sport and the Issue of Defamation in Australia: The Stephen Dank Cases
Authors: Davies Chris
Published: June 2021

Stephen Dank is a name that will now be forever linked to the doping scandals at Cronulla-Sutherland and Essendon which arguably represents the biggest ever story in Australian sports law. Part of that story are the numerous defamation actions Dank took against anyone he perceived to be making criticisms of him in the media. However, rather than restoring his reputation, it is suggested the defeats he suffered in court actually protected the reputations of those accused of defamation, while at the same time further damaging his own. At considerable expense, too, with costs being awarded against Dank on all occasions. The cases reinforced the principle that even if someone has contributed material, unless they have consented, or have control of the final version, they will not be held liable for what is said or written. Most significantly, however, was the insight the cases provided into what actually happened at Cronulla-Sutherland during its doping scandal.
Doping in Sport - Should it be a Crime?
Authors: Fitzgerald Tomas
Published: June 2021

In 2010 the National Rugby League discovered that the Melbourne Storm Rugby League club, had engaged in systematic breaches of the salary cap rules. Across 5 years the club paid players in various ways without disclosing those payments as required under the NRL’s rules. Additionally, those payments were covered up by doctored bookkeeping, and in some cases false statutory declarations about compliance with salary cap rules. In 2013 the Essendon Football Club was investigated by the Australian Sports Anti-Doping Authority for its now notorious supplements program. That program involved the administration of purportedly performance enhancing substances to members of the playing group. The practice was widespread, systematic and involved non-compliance with ordinary record keeping practices, presumably to obscure which substances were taken when and by whom. Both of these are examples of systematic, deliberate cheating in sport, calculated to gain advantage over rivals. Both were punished severely by the administrators of the respective sporting codes. Yet despite these similarities, only the Essendon supplements scandal has been accompanied by serious and persistent calls for criminalization of the behavior underlying the cheating.
The taxation consequences of futures in Australia
Authors: Markovic Martin
Published: June 2021

Australian futures markets have experienced unprecedented growth in the past few years. The taxation implications for the majority of futures market participants who are traders are relatively straightforward. However, the taxation implications for non-traders are far from straightforward. This paper examines the contentious issues of whether futures contracts involve the ‘sale’ of ‘property’ and if so, was that property ‘acquired’?

These issues and the possible application of s 25A(1) ITAA have been evaded or inadequately dealt with by the courts and the Commissioner of Taxation. It is established that futures contracts may constitute ‘property’ if they are legal choses in action but there remain doubts as to whether a chose in action is ‘acquired’ or ‘created’ when a party enters into a futures contract.

Furthermore, the Commissioner’s inference that a ‘sale’ takes place upon an assignment or novation in futures transactions is rejected. As such, the second limb of s 25A(1) may play a vital role in catching non-business speculating profits.
Alternative Structures for Business and Investment
Authors: Hazzard Ian W , McKnoulty Peter J
Published: June 2021

Perhaps the most profound change to Australia’s tax system in recent years has been the implementation of a broad-based capital gains tax in Part IIIA of the Income Tax Assessment Act. many receipts which would not formerly have been assessable as income on ordinary concepts under s 25(1) are now within the compass of the Act. There is a need to examine the tax effectiveness of different business structures in their treatment of capital gains, and this is the focus of the first part of this paper. Other more traditional considerations are also explored in detail.
Outward Investment : The Branch v Subsidiary Decision
Authors: Northeast Mark
Published: June 2021

Over the past five years the Australian international investor has seen a simple foreign investment income exemption system replaced by a foreign tax credit system which has in turn been replaced by the foreign tax accruals system. The current foreign source income regime allows an exemption for certain types of foreign income and subjects other income to a modified foreign tax credit system. The international investor must now distinguish between listed (tax comparable) countries and low tax jurisdictions as well as whether passive or active business income is to be dervied to appreciate fully the Australian taxation implications. In addition to an analysis of the investee’s counrty’s taxation system, the corporate investor further neeeds to consider whether investment should be made via way of branch of subsidiary.
Companies and Taxation : a Review of Selected Issues
Authors: Mitchell R B
Published: June 2021

This article takes stock of a selected range of revenue law issues which have emerged in recent times. The emphasis is on issues of concern to corporate taxpayers. These have been grouped around four broad headings: 1. Restructuring issues 2.Operational issues 3.International tax issues 4.Tax environment

Many of the areas highlighted will be key areas to watch for future developments. The article provides a useful stocktake of important corporate tax issues.
New Zealand’s Approved Issuer Levy - A Pragmatic “Concession”
Authors: Smith Martin
Published: June 2021

The avoidance of non-resident withholding tax (“NRWT”) on interest can occur in two main ways. The parties may adopt structures and/or arrangements which seek to circumvent the statutory provisions defining ‘interest’ or requiring the tax to be deducted, or alternatively a non-resident lender may exploit an inequality of bargaining power so as to force the resident borrower to bear the cost of the NRWT as well. The New Zealand government has responded to these difficulties by enacting an “approved issue levy” regime, which can provide an alternative to interest NRWT. The author examines the features of this new regime and contemplates its implications.
Guest Editorial
Authors: Kelly David St L
Published: June 2021

[Extract] The times are indeed difficult for taxpayers and their tax adviesers. The Income Tax Assessment Act 1936, already one of the world’s longest pieces of tax legislation, is continually being amended. Australian tax legislation in general is becoming more compelx and more confusing every day.
A Critical Analysis of the Foreign Tax Credit in Australia and its Relationship to the Imputation and Controlled Foreign Entities Legislation
Authors: Hourigan Phillip
Published: June 2021

This paper critically evaluates the Foreign Tax Credit system operating in Australia. In doing so it considers the systems operating inthe United Kingdom and the United Sates. The foreign tax credit system necessarily affects many areas of taxation, so this article considers the system in a wide context with some emphasis on the dividend imputaion system, indirect credits and the controlled foreign entity provision.
The Goods and Services Tax : Reflections on the New Zealand Experience, Six Years On
Authors: Muir Roger S
Published: June 2021

The Goods and Services Tax (GST) is a form of value added tax (VAT). It was imposed in New Zealand at a single rate of
Editorial
Authors: Bentley Duncan , Corkery Jim
Published: June 2021

[Extract] Not since 1936 has there been such an opportunity for the reform of the Australian tax law. Voters have dampened the fervour for tax reform, with the defeat of the Coalition an dits consumption tax package at the last Federal election.

Yet the push for change goes on unabated.
The UK Experience with VAT
Authors: Warren Neil
Published: June 2021

This article provides an overview of the background and changes to the Value Added Tax (VAT) introduced into the UK in 1973. The main economic effects of VAT, its distributional impact and the cost of administration and compliance are examined. The article concludes with an assessment of the likely future direction of VAT.
The Argument for Using the Accruals Concepts of Accounting as Established by the Professional Accounting Bodies to Determine the Application of Section 51(1) of the Income Tax Assessment Act
Authors: Delaney Thomas P
Published: June 2021

There are indications that the courts are moving away from a strict legalistic interpretation of s 51(1) of the Income Tax Assessment Act (1936) (as amended), to one based on commercial and accounting principles. This article reviews the development of the courts’ interpretation of when an expense has been ‘incurred’ for s 51(1) and puts forward the case for allocating prepayments in accordance with the principles of accruals accounting. This paper confines its discussion to taxpayers who are currently returning their income on an ‘accruals basis’.
The Taxation of Capital Gains in Relation to Non-residents of Australia
Authors: Smith Barbara
Published: June 2021

This article discusses the effect of the capital gains tax legislation on a resident Australian taxpayer who ceases to be a resident of Australia for taxation purposes. It is the object of this paper to review whether the capital gains tax legislation as it relates to non-residents provides scope for tax planning and/or avoidance.
Part IVA - A Tiger, or Toothless?
Authors: Smith Barbara
Published: June 2021

In February 1991, the Federal Commissioner of Taxation (inexplicably withdrew his appeal against the decision of Davies J in Metropolitan Oil Distributers (Sydney) Pty Ltd v FCT (1990). This paper examines whether the arrangements entered into by the taxpayer could have been struck down by the Commissioner had they been entered into after 27 May 1981. In doing so, it provides a useful analysis of the effectiveness of the Part IVA provisions.
Use of Administrative Decisions (Judicial Review) Against Customs Seizures
Authors: Livingstone-Ward Robert
Published: June 2021

This article examines whether the Administrative Decisions (Judicial Review) Act is a an effective remedy in the battle for seized goods. The alternative options are reviewed in the light of past decisions and the extent of the Federal Court’s jurisdiction.
Reform of the Australian Wholesale Sales Tax
Authors: de Leifde Robert
Published: June 2021

This article proposes reform of the Australian Sales Tax legislation. The proposal suggests a tax mix alteration which is not revenue neutral. The purpose of the significant alteration of the system for indirect taxation and the change in the tax mix is to create a less complicated system which causes less distortion to the economy. The extra revenue yielded at the proposed rate of the tax should, ideally, be used for macro economic purposes.
The Design of an Appropriate Sytem of Tax Rulings
Authors: James Simon , Wallschutzky Ian
Published: June 2021

This article examines criteria for assessing the respective merits of different systems of tax rulings. Both the Australian and UK arrangements fit what might be described as a “Revenue Service Model of Tax Rulings”. The analysis presented suggests that a system of rulings should at least be partly “consumer driven” and that tax rulings should be issued by an independent body and not by the tax authorities.
Problem Resolution : Does the ATO Approach Really Work?
Authors: Bentley Duncan
Published: June 2021

It is timely to examine whether the complaint handling procedures set up by the Australian Taxation Office measures up to the standards of best practice developed in alternative dispute resolution. This article analyses the relationship between taxpayers and the Australian Taxation Office in terms of conflict theory. If then extends this anlysis to focus on the latest complaint handling procedures developed for the Taxpayers’ Charter.
What is a Tax? The Erosion of the “Latham Definition”
Authors: Morabito Vince , Barkoczy Stephen
Published: June 2021

As its title suggests, this article examines the fundamental, yet by no means basic question of what is a “tax”? The article focuses on recent judgments of the High Court which have, to some extent, eroded what many commentators have regarded as the classic definition of a tax expressed by Latham CJ in Matthews v Chicory Marketing Board.
Rowe: A Symmetry Cemetery?
Authors: Schabe David , Walpole Michael
Published: June 2021

The author examines the decision in FCT v Rowe for the concept of symmetry in tax matters which appears to underlie the equitable operation of the system. They conclude that, if there is such a principle, it certainly has not been applied in Rowe’s case. According to the authors, this is probably correct in law, but does not necessarily serve the interests of fairness in tax matters. The authors draw on the experience of the UK and South Africa in dealing with similar situations. They conclude that the UK system has no better answers than the Australian, but that statutory intervention in South Africa has meant that the dispute in Rowe, despit the general similarity of the South African tax law, could never arise.
Statutory Judicial Review of the Administration of the Income Tax Assessment Act 1936
Authors: Carbone Domenic
Published: June 2021

This article examines recent developments which impact on the scope of judicial review to challenge actions taken by the Commissioner of Taxation. The author concludes that, while the scope of review remains extensive, recent cases have created uncertainty about the precise extent of statutory judicial review under the Administrative Decisions (Judicial Review) Act 1977.
Editorial
Authors: Bentley Duncan
Published: June 2021

[Extract]Our theme in this volume is taxpayers’ rights around the world. To our knowledge there has been no such comprehensive coverage of the topic in English. The articles provide fascinating insights into the different issues that are claiming the spotlight around the world.
Taxpayers’ Rights in South Africa
Authors: Williams Bob
Published: June 2021

The democratisation of South Africa resulted in the enactment of a new interim Constitution in 1993, which incorporated a Bill of Rights setting out certain constitutionally entrenched rights. Provisions of the Income Tax Act which flout the Bill of Rights can now be declared invalid by the courts. Several provisions of the Bill of Rights are of great importance for taxpayers. A general charter of rights for taxpayers may well be laid down in South Africa in the reasonably near future. However, the cutting edge of legally enforceable taxpayers’ rights will undoubtedly reside in the constitutional Bill of Rights.
Taxpayer Rights in the Netherlands
Authors: Sommerhalder Ruud A
Published: June 2021

Taxpayer rights in the Netherlands are governed by both national and international rules (treaties and European Community law). These rules form the legal framework within which the rights and obligations of all parties involved in the taxation process are evaluated. The following issues are discussed: the rights and obligations of taxpayers with regard to the provision of information to the tax authorities to assess taxes; the assessment objection and appeal procedures; and, the tax collection process. The main conclusion is that although certain aspects of the procedural laws should be improved, a proper protection of taxpayer rights starts with the simplification of the actual tax law to simplify the entire tax collection procedure.
Editorial
Authors: Bentley Duncan , Corkery Jim
Published: June 2021

[Extract]Tax reform is one of those marvellous terms that sounds visionary and idealistic, evoking thoughts of change and new deals.

The reality is grubbier. Grand theories are dissected and dismembered by various interest groups. Political reality creates alarming distortions that challenge the minds of administrators and tax professionals for years afterwards.

Yet where politicians with large political mandates or powerful personalities ignore consultation and the democratic process they often do so at their peril.
Recognising the Pitfalls in Tax Compliance Costs Research
Authors: Turner John L , Smith Malcolm , Gurd Bruce
Published: June 2021

Since the first study of tax compliance costs in 1973 there have been numerous studies of different taxes in many different countries. Unfortunately, most of these studies have adopted the same approach as the seminal study, even though the complexity of the issues involved rarely make this appropriate.

The wide variations in the outcomes of these studies suggest that the accuracy and reliability of the results are closely related to the method of research employed. This paper examines the best and worst of current practice, identifies common deficiencies and makes recommendations for improvements in the manner in which tax compliance research in conducted.
The Continuity of Business Tests for Carrying Forward Losses
Authors: Ma Winnie
Published: June 2021

This article examines the interpretation and application of the continuity of business tests (generally known as the “same business test”) for the carry forward of losses and the deduction of bad debts. It provides a critique of the Australian Taxation Office (ATO) analysis of the old provisions. It then makes suggestions on how to approach the new provisions which have been rewritten by the Tax Law Improvement Project.
Current Books
Authors: Bentley Duncan
Published: June 2021

[Extract] This section is designed to provide a brief overview of the content of recently published, tax related books that may be of interest to our readers.

• Tax Law Design and Drafting • Tax Units and the Tax Rate Scale • Company Tax Systems • Taxation Towards 2000 • Interests in Non-Resident Trusts: a Review of the Conflicting Income Tax Regimes • Tolley’s International Tax Planning
The Tax Treatment of Intangibles in the Context of Transfer Pricing
Authors: Wills Michelle
Published: June 2021

This paper highlights the increasing importance of intangibles in the international dealings of multinational enterprises. Focussing on fiscal regulations in the United States and in OECD member countries, particulary Australia, it critically reviews the arm’s length principle and related issues in their application to intangible property. It examines the complexities associated with the various methodologies that have been developed for determining arm’s length consideration for transfers of intangibles, and puts forward some suggestions for developing an appropriate typology.
Comments on “Recognising the Pitfalls in Tax Compliance Costs Research”
Authors: Tran-Nam Binh
Published: June 2021

This is a critical comment on a review of the research methodology in tax compliance costs by Turner, Smith and Gurd in the Revenue Law Journal” volume 8, 1998. It argues that there are inaccurate assertions in their review. Many of their recommendations, while correct, are well known in the literature and difficult to implement in practice. In evaluating previous Australian studies, Turner, Smith and Gurd did not take account of resource constraints facing early researchers. They failed also to highlight in a systematic fashion the conceptual advancement and improvements in data collection in the more recent studies.
The Canadian GST Treatment of Financial Services - What Lessons are there for Australia?
Authors: Greenbaum Abe
Published: June 2021

This article discusses the judicial development of the Canadian GST over the past 10 years. It focuses on the treatment of financial services. The author believes the

Canadian experiences and the resulting legislative actions can assist Australia. Further, he argues that, if there were some commonality of charging GST/VAT on financial transactions, there would be considerably less discord in the application of the GST/VAT in the affected nations.
An Australasian Contribution to Hong Kong Tax Law
Authors: Littlewood Michael
Published: June 2021

The aim of this article is to show how a series of old Australian and New Zealand tax cases is somewhat unexpectedly acquiring a new lease of life in Hong Kong.

More surprisingly still, the new-found relevance of these cases is largely in fields of commercial endeavour which were unimagined when they were decided but which now account for a very substantial part of Hong Kong’s economy. In particular, it has transpired that the old Australian and New Zealand cases bear directly on the taxation of, first, Hong Kong firms (and Hong Kong subsidiaries of

foreign firms) involved in certain forms of joint-venture manufacturing in the Chinese mainland and, secondly, financial institutions. Moreover, the issues to which the old Australasian cases relate are not trivial; on the contrary, they relate to basic questions of liability. Consequently, the revenues at stake are substantial.
First Do No Harm: GST and Health Care Services
Authors: Whitby Catherine
Published: June 2021

This article considers the impact of A New Tax System (Goods and Services) Tax Act 1999 (Cth) on health services, health practitioners and their patients. It discusses the basis for the concessionary treatment of healthcare in Australia and other jurisdictions. The difficulty of determining the tax status of a service not covered by Medicare is highlighted; so too the conflict between the medical and allied health provisions.
e-GST
Authors: Mann Jeff , Swinson John , Morrison David
Published: June 2021

This article provides a comprehensive analysis of the application of e-commerce to GST. The first part identifies the general problems for GST that arise from the

nature of e-commerce transactions in the context of national and international reports. The second part provides detailed analysis of the specific application of

the GST law to e-commerce transactions through an extensive discussion of specific examples. The article concludes by highlighting the key issues affecting GST and the Internet.
An Analysis of GST and Third Party Consideration
Authors: Edmundson Peter
Published: June 2021

This article analyses the application of GST to situations involving third party consideration. It discusses the connection between supply and consideration required by the GST Act, critically analyses the Commissioner’s views on the matter and makes a series of suggestions that may assist in the analysis of the issue.
The Impact of Property Law and Contractual Principles in Taxation Law
Authors: Hart Geoffrey
Published: June 2021

Many recent tax law decisions have depended on the application of basic principles in property law and contract. A thorough knowledge of principles in

these areas is essential for taxation advisers. In general, a transaction must be valid in terms of property law for it to be valid in taxation law. Indeed, as we saw in FCT v Everett,1 the courts have refused to find a separate set of principles unique to taxation law.
Investment Markets and Sustainable Agriculture : A Case for Ecological Tax Reform
Authors: Gumley Wayne
Published: June 2021

This paper considers the outcome of recent inquiries into mass-marketed tax effective investment schemes in Australia within the broader context of promoting ecologically sustainable development in the agribusiness sector. The recent inquiries have revealed some significant shortcomings in the application of the self-assessment system to agribusiness investors, which have to some extent been remedied by the introduction of product rulings. Whilst product rulings have provided investors with a certain degree of security, there has been a significant

decline in agribusiness investment and a convergence in the range of agribusiness ventures being offered. The author concludes that the income tax system is currently providing the wrong market signals, by promoting many agribusiness

investment schemes that are not ecologically sustainable. Accordingly, there is a strong case for ecological tax reform, whereby the taxation treatment of agribusiness investment schemes needs to be better integrated with environmental policy.
The Penthouse, the Porsche or the Pension : Superannuation and Divorce
Authors: Henn Thomas , Boujos Jocelyne
Published: June 2021

This article deals with superannuation and divorce and the effect of the Family Law Legislation Amendment Superannuation) Act 2001 (‘the Act’). The Act which was

introduced by the Government in response to problems raised by a Senate Committee Report was passed by Parliament on 18 June 2001 and received Royal Assent on 28 June 2001 (Act No 61 of 2001).
The Trend Towards Purposive Statutory Interpretation : Human Rights At Stake
Authors: Lonnquist Tobias
Published: June 2021

A clear trend has been identified in relation to the interpretation of statutes from a strict or literal approach towards a more purposive approach. This has

even been the case for revenue law which for some time has been considered as a penal statute. This trend is evident in other tax jurisdictions, both civilian and common law. After comparing and contrasting the various arguments for and against the purposive approach, it has been concluded that this observed change should not be welcomed in relation to the taxation legislation. Such an approach poses a serious threat to the separation of powers’, as the judicial arm would be able to read words into the legislation as they see fit. Even worse, however, is the threat to human rights, that is, the ability of the taxpayers to protect what is rightfully their own.
Deductions Arising From Illegal Activities
Authors: Lund Siska
Published: June 2021

The income tax legislation taxes income ‘from all sources’. On its plain wording, the ITAA is not concerned with how that income is earned or generated. Should

we tax illegal gains, such as the profits of crime or the gains of illegality? Equally, assuming the ill-gotten gains are taxable, should the costs of those crimes and

illegalities be deductible? To use the words of Hely J in C of T v La Rosa, the subject of this article, can we have ’[t]he paid assassin … deduct[ing] the cost of

his bullets and depreciat[ing] the cost of his gun’? Based on a strict interpretation of the tax law, the answer is yes.
Bring them Home - The Case for Tax Concessions for Returning Australians
Authors: Jogarajan Sunita
Published: June 2021

Globalisation and advances in technology have created an internationally mobile labour market, particularly for skilled workers. In Australia the number of Australians going overseas permanently or for extended periods of time is continuously increasing and is currently at record levels. This creates a number of problems for the domestic economy in the short-term and inhibits growth and

development in the long-term. An effective and timely response is required. Returning residents bring with them a number of benefits which cannot be realised through migration or even retention and accordingly, this article argues for the introduction of a tax concession for returning residents as a means of enticing them to return.
The Hypocritical Stance by the OECD, Representing the Developed Nations - Inappropriate Pressure on Less Developed Nations to Adopt Compliant Tax Regimes
Authors: Dr Angelo Venardos
Published: June 2021

Central to the question of legitimacy in the difficult issues of international taxation and confidentiality is the comity principle, which is an extension of the principle of

territorial sovereignty. The real concern of onshore countries such as Australia in relation to offshore activity is often actual financial loss, rather than high or moral principles. The argument thus follows that, in response to the international pressures exerted through directives and sanctions of supranational bodies such as the OECD, all things being equal, offshore states have a similar right to safeguard their economic and political interest by upholding them.
The Rhetoric of Taxation Interpretation and The Definition of ‘Taxpayer’ for the Purposes of Part IVA
Authors: Burton Mark
Published: June 2021

[Extract]Much thinking about law is conducted within a dualistic paradigm1 and it would be fair to say that most discussion of statutory interpretation is no exception. Over the past several centuries vast amounts of ink have been spilt on the vexed question of statutory interpretation.2Mainstream discourse on statutory interpretation in Australasia perpetuates the perception that this jurisprudential challenge is a two horse race – readers are given a choice between literalism and purposive interpretation.3
ATO’s Determination on CGT Cost Base Inclusion for Interest Expenditure Denied Deductibility under Split Loans because Part IVA is Flawed and Misleading
Authors: Boccabella Dale
Published: June 2021

The Full High Court in FCT v Hart (2004) 55 ATR 712 found that further interest and compound interest incurred under a split loan facility is not deductible under the general deduction provision, by operation of the general anti‐avoidance rule (GAAR)in Part IVA. But can the interest be included in the cost base of a CGT asset, namely, the investment property? In Taxation Determination TD 2005/33, the Australian Taxation Office (ATO) says no. The ATO claims that it would be inappropriate for the ATO to make a compensating adjustment under s 177F(3) to include the interest denied deductibility because of the GAAR in the cost base of the investment property.

This article argues there are many shortcomings in the ATO’s technical analysis in TD 2005/33. The ATO’s approach is illogical, and much of the focus in TD 2005/33 is on

the wrong question. The design of the GAAR is likely to provide an answer unpalatable to the ATO. The failure of the ATO to raise another relevant GAAR argument (ie, taxpayer obtained a tax benefit in the form of an inclusion in the cost base of the investment property) in Hart’s case does not assist the ATO. Further, the

ATO’s extraordinary failure to refer to Taxation Ruling TR 98/22 in TD 2005/33 borders on deception. Taxation Ruling TR 98/22 ‐ a binding ruling ‐ states that certain interest (further interest, and arguably compound interest) denied deductibility under a split loan arrangement because of a GAAR determination is included in the cost base of the investment property. This is contrary to the position now asserted by the ATO in TD 2005/33. Is TD 2005/33 being used to ‘bludgeon’ affected taxpayers into accepting a position that has little merit under the tax law?
To What Extent do APAs Confer Greater Certainty With Respect to Transfer Pricing Issues?
Authors: Damon Dylan D
Published: June 2021

Transfer Pricing Issues remain at the forefront of tax planning issues for multinational enterprises (MNEs). Whereas previously transfer pricing was seen as a means to

procure a tax benefit, MNEs are increasingly adopting a more conservative attitude towards transfer prices issues. This has meant that MNEs are increasingly seeking to enter into advance pricing arrangements (APAs) with the relevant tax authorities to prospectively determine their tax liabilities. The author analyzes the benefits of APAs in this context, specifically how they confer greater certainty in respect to transfer pricing issues. It is argued that APAs are not suitable for all participants. Part of the reason is that tax authorities have been less than accommodating in allowing MNEs to access their APA programmes.
The Status of the Judicial Sham Doctrine in the United States
Authors: Postlewaite Philip F
Published: June 2021

Throughout the early history of the United States income tax law, the courts eagerly scrutinized tax transactions to ensure that their substance comported with their form. The courts developed a common law ensuring that tax transactions were also in keeping with the purpose of the legislation. Recently, courts of the United States appear much more reluctant to intervene to impose purpose over form. Given the rise of textualism - giving a statute its ordinary meaning according to its text, as opposed to

inquiring into non-textual sources such as the intent of the legislature - as the preferred mode for judicial interpretation of tax legislation, nothing more than

compliance with the statutory language is required. Accordingly, another branch of government, the legislature, is increasingly intervening by statutory provisions to

guard against tax avoidance.