Taxation Determination TD 2003/9
Date of effect: 16 April 2003


Class of entities or scheme: 15. In our view, no deduction for a partnership loss is allowable to investors in the prepaid service warrant arrangements described in paragraph 3. Therefore the arrangement will not give rise to a tax benefit within the meaning of section 177C of the Income Tax Assessment Act 1936 ('ITAA 1936'). 16. However, if the partnership loss was an allowable deduction, consideration would be given to the application of Part IVA. The Part must be applied on a case-by-case basis, and in each case proper consideration must be given to the individual circumstances of the taxpayer before making a decision on its application. 17. Nevertheless, having regard to the matters set out above, it is likely that it would be concluded that, having regard to the statutory factors in section 177D of the ITAA 1936, the sole or dominant purpose for the taxpayer (and the promoters) entering into or carrying out a scheme consisting of the whole, or some part of, the prepaid service warrant arrangement would be to enable an investor to obtain a deduction for the partnership loss. In this regard, see the finding by Conti J in Howland-Rose v. Commissioner of Taxation (above) at paragraph 142 of the judgment: 18. Investors who have entered into or are contemplating entering into an arrangement similar to that described in this Taxation Determination, and who believe that the arrangement implemented in their case or proposed to be implemented is distinguishable from that described here, may wish to apply to the Commissioner of Taxation for a Private Ruling.





The number, subject heading, date of effect and paragraphs 1, 3, 7 and 17 of this Taxation Determination are a 'public ruling' for the purposes of Part IVAAA of the Taxation Administration Act 1953 and are legally binding on the Commissioner. The remainder of the Determination is administratively binding on the Commissioner. Taxation Rulings TR 92/1 and TR 97/16 together explain how a Determination is legally or administratively binding. | 2. Taxpayer Alert 2002/5 ('the Alert') was issued on 8 April 2002. It described an arrangement where a taxpayer claims large income tax deductions for partnership losses purportedly incurred in carrying on a business of buying and selling warrants for the provision of wealth creation seminars. The Alert indicated that the Australian Taxation Office is examining the scheme. | 3. The arrangements are generally as follows: | 4. Our view on these arrangements is as follows: | Subsection 8-1 (General deductions): 5. It is a question of fact as to whether there is a partnership and if a business is being carried on in partnership. The question of a potential partner's intent and conduct when entering into a purported partnership arrangement is one that is looked at on a case by case basis (see Taxation Ruling TR 94/8). | 6. It is also a question of fact as to whether any business is being carried on. In this arrangement, the taxpayer is not carrying on a business (whether in partnership or not) for the purpose of gaining or producing assessable income. There is no evidence of a purpose of profit making, of any business activity, of a business-like organisation, or that any warrants were employed in the purported business. | 7. Accordingly, the purported expenditure on the acquisition of warrants is not necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income and is not deductible under paragraph (b) of sub-section 8-1(1) of the Income Tax Assessment Act 1997 ('ITAA 1997'). | 8. Nor is the expenditure deductible under paragraph (a) of sub-section 8-1(1). If no income is in fact produced, the relevant characterisation of the outgoing is to be found in the relationship between the outgoing and the assessable income that the outgoing 'would be expected to produce': Ronpibon Tin v. FC of T (1949) 78 CLR 47 at 58. | 9. The question of whether the investment would be expected to produce income is crucial and integral in the present case to the application of the 'real and genuine commercial test' adopted in Lau v. FC of T 84 ATC 4618; (1984) 15 ATR 932 and Brand v. FC of T 95 ATC 4262; (1995) 30 ATR 426, and accepted as the relevant test by Conti J in Howland-Rose v. Commissioner of Taxation 2002 ATC 4200 at 4262; 49 ATR 206 at 276. | 10. When the arrangement is entered into, the partnership has no business plan or method of selling the warrants, nor is there any evidence of activity by the partnership to sell or promote these seminars, or of any warrants actually being transferred to the partnership. There is no evidence of any sales of seminars. In reality, there could be no expectation that the investment would produce assessable income, let alone assessable income in excess of the relevant outgoing in the sense described in Fletcher v. FC of T 91 ATC 4950; (1991) 22 ATR 613. | 11. Moreover, the fact that there appears to have been a general failure on the part of investors to conduct any inquiries, and that they seem to disregard easily ascertainable risks that the project would yield little or no return, also supports the conclusion that the outgoing was not genuinely incurred in gaining or producing assessable income (see Vincent v. FC of T 2002 ATC 4490 at 4513; (2002) 50 ATR 20 at 46 - paragraph 96 of the judgment). | 12. Even if the expenditure would otherwise be deductible under either paragraph (a) or (b) of subsection 8-1(1), the full cost has not been incurred at the time of entering the agreement. In the arrangement described above, the partnership incurs the cost of the deposit on the warrant at the time the warrant is issued. The balance of the money owing will become due and payable and be incurred at one of two points, either when the warrant is presented for redemption for services, or when the warrant expires at the end of the year of issue and is repurchased by the service provider. | 13. As a result, the amount (if any) that is incurred in the first year of operation of the partnership could only be the amount of the deposits paid on the issue of the warrants to the partnership. It can be said of any remainder that it is no more than impending, threatened or expected and therefore not incurred in the sense described in FC of T v. James Flood (1953) 88 CLR 492; 10 ATD 240. | 14. If, contrary to the position put above, the cost of the warrants has been incurred in carrying on a business, the value of warrants on hand at year end must be brought to account as trading stock, pursuant to Division 70 of the ITAA 1997, in calculating any partnership loss. This is so, regardless of whether the cost incurred in the first year is considered to be, as we argue, the deposit paid or alternatively, the full face value of the warrants. | 'The impact of the material in the various parts of the Prospectus which I have identified immediately above leads inevitably in my opinion to the conclusion that... the Applicants acquired their respective syndicate participations objectively for the dominant purpose of obtaining the benefit of the taxation deductibility opportunities so prominently featured in the Prospectus. The circumstance that each Applicant testified as to an incentive of deriving substantial revenue in due course, as a consequence hopefully of future successful research and product development, cannot in my opinion avoid the result that he or she adopted a mechanism for so doing by way of participation in the process of research and development at no, or virtually no, ultimate cash shortfall, by reason of the excess or likely excess of the monetary benefits flowing in principle from the incidents of taxation deductibility over the cost of participation outlaid in cash.' | Date of effect: 19. This Determination applies to arrangements commencing both before and after its date of issue. However, this Determination does not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of the Determination (see paragraphs 21 and 22 of Taxation Ruling TR 92/20). | Commissioner of Taxation 16 April 2003 | Previously released in draft form as TD 2002/D16.


Related rulings: TR 92/1 TR 92/20 TR 94/8 TR 97/16 TA 2002/5
Legislative references: ITAA 1997 8-1 ITAA 1997 8-1(1) ITAA 1997 8-1(1)(a) ITAA 1997 8-1(1)(b) ITAA 1997 Division 70 ITAA 1936 Part IVA ITAA 1936 177C ITAA 1936 177D TAA 1953 Part IVAAA
Case references: Brand v. FC of T 95 ATC 4262 (1995) 30 ATR 426
Subject references: schemes & shams tax havens carrying on a business internet part IVA