Measuring Top Incomes Using Tax Record Data -Myassignmenthelp.Com

Question: Discuss About The Measuring Top Incomes Using Tax Record Data? Answer: Introduction The present case study is based on the ascertainemt of the residential status of Minh relating to the income tax purpose. Additionally, the case study will be determining the residential status effecting the assessment of income derived from Malaysian and the income from investment in Australia. The case study of Minh opens with the station the situation that the Minh was born in Malaysia and carried out her business activities. In the later part of June 2016, she was granted with the Visa of working in Australia and she arrived with her family with the probable of intention of eventually migrating and starting a business. An instance was noticed where Minh bought a home in Melbourne and resided with her partner and children with her children being enrolled in the local school of Melbourne. As the general jurisdictional rule stated under section 6-5 (2), (6-10 (4) of the ITAA 1997 residents are generally assessed on based on the ordinary income and statutory income derived from all the sources (Woellner et al. 2016). Accordingly as stated under section 6-5 (3) (a) and 6-10 (5) (a) of the ITAA 1997 a foreign resident or non-resident of Australia are assessed based on their ordinary and statutory income generated from the Australian sources. According to the definition stated under the section 995-1 of the ITAA 1997 and under section 6-(1) of the ITAA 1997 a resident or Australian resident for taxation purpose represents an individual residing in Australia and comprises of the person that has the domicile in Australia (Barkoczy 2016). An Australian resident represent a resident that has been living in Australia either constantly or intermittently for more than half of the income year unless the officer of taxation is content that the persons usual place of residence is out of Australia and has no intent of taking up the residence in Australia (Vann 2016). In order to determine the domiciliary position of Minh three alternative test will be conducted as to whether Minh will be treated as Australian resident for taxation purpose; these alternatives test includes Residency test according to ordinary concepts Domicile test The 183 day test Resides Test according to ordinary concepts: The first test that is conducted in determining the residential status of an individual is whether an individual Resides in Australia (Barkoczy 2017). On satisfying, the test there is no further need of conducting any further test for assessing the domiciliary position of an individual. On satisfying the Resides test, the person will be regarded as the resident of Australia for the purpose of tax. The term Reside represent to live permanently or for a considerable period. The question relating to fact and degree is explained in the case of Federal Commissioner of Taxation v Miller (1946) where the question of fact and extent is reliant on the circumstances of case (Tan, Braithwaite and Reinhar 2016). The Reside Test takes into the consideration the quality and the character of a persons actions at the time when the person was present in Australia. Additionally taxation ruling of TR 98/17 in determining the residential status of an individual under the Resides Test takes into the acco unt; The taxpayers usual purpose and intention of presence in Australia The business and family ties of the taxpayer in Australia Looking after and location of the taxpayers assets. The taxpayers communal and physical arrangement Time until when the taxpayer was physically present in Australia also forms the relevant factor in determining the residential status however the time period cannot be regarded as the detrimental factor (Braithwaite 2017). As evident from the case study of Minh, migrated to Australia eventually with the intention of probably migrating and commencing her business activities. It was noted that she bought a home in Melbourne where she resided with her partner and children. As held in the case of Macrea v Macrea (1949) a migrant that settles with the family in Australia would be generally regarded as living in Australia from the date of the individuals arrival in Australia (Davis et al. 2015). Notwithstanding of the fact that the persons business or personal interest may need he or she to be absent from Australia for an extended period. For instance an individual migrating to Australia with his wife and children and bought a home in Australia. The individual retains the business in his nation of origin an often returns to the country of origin for carrying out the business activities for 2 or 3 months in a year (Saad 2014). Ordinarily the person would be regarded to be living in Australia in spite of the o verseas absence. Similarly, in the case of Minh she has migrated from Malaysia to Australia and has purchased a home in Melbourne where she resided with her partner and children. She returns to Kuala Lumpur for carrying out the business activities. Minh will not be treated as residence in respect of the ordinary concepts for the income year 2016-17 since she has not taken up the residence permanently. The residency status of Minh and her children is an independent and separate matter. Domicile Test: Domicile is determined in respect of the Domicile Act 1982. An individual is regarded as the Australian resident given their domicile or place of abode is Australia (Miller and Oats 2016). An individual is not considered to be an Australian resident only under the circumstances when the officer is content that the individual place of residence is out of Australia. Domicile relating to choice of country represents the circumstances where the taxpayer intends to make their home indefinitely. As evident from the current case study of Minh, she has the permanent place of abode outside of Australia in Malaysia however; she originally migrated from Malaysia to Australia with eventual intention of residing in Australia until further notice and commencing her business. She even bought a home in Melbourne and her duration or continuity of presence in overseas country was broken intermittently (Mihaylov et al. 2015). Citing the reference of FCT v Applegate (1979) Minh has not abandoned any of her home or place of dwelling in Australia and returns to Australia after carrying out her business in Malaysia. According to the decision stated by the court in the case of Henderson v Henderson (1965), an individual maintains the domicile of the country of his or her origin except an individual obtains a home in another country (Burton and Karlinsky 2016.). Taking into the considerations the instances obtained from the current case study it can be stated that Minh is not an Australian occupant for tax purpose in respect of the Domicile Act 1982. Importantly, it would appear that they are Australian resident but the residency status of Minh and her children are independent during the income year 2016-17. Because of this, she cannot be held resident for taxation purpose under the domicile test. Additionally, she has no intent of taking up the residency in Australia. The 183-day Test: An individual under the 183 days test is regarded as the Australian occupant if the individual has actually be present in Australia either continually or in breaks for more than one half of the income year (Davison, Monotti and Wiseman 2015). An exception to this rule is that a person will not be considered as the Australian resident if the individual satisfies the commissioner of taxation that if, his normal place of dwelling is out of Australia and has no purpose of taking up the residency of Australia. The 183 days test is helpful in determining whether an individual has commenced living in Australia. As evident from the current situation of Minh, it is noticed that she has only spend 120 days in Australia. An individual is regarded as the Australian resident given the person has successfully met the criteria of 183 days and meets the definition of the resident in respect to the subsection 6 (1) of the ITAA 1997. However, an important assertion can be bought forward by stating that a person under the 183 days test is only regarded to hold as resident if an individual has been present and living in Australia for more than six months of the year of income (Grudnoff 2015). Minh in this aspect has not been presented in Australia for more one half of the income and as result of this for the year 2016-17 she cannot be regarded as resident of Australia for the purpose of tax. On a conclusive note, an assertion can be bought forward by stating that Minh residency will be considered as separate and independent matter. She cannot be considered as Australian resident for taxation purpose since she has not met the criteria of Resident in terms of the ordinary concept, domicile test and 183 days test. More importantly the residency status of Minh is independent and distinct subject. According to the judgement stated in the case of Nathan v FCT (1918) in determining the original source of income is regarded as practical and hard matter of fact (Evans, Minas and Lim 2015). Referring to the judgement of federal court in United Aircraft Corp (1943), a business income constitute where the business is transacted or the place where the goods are sold. As evident from the present situation of Minh, it is evident that she is not an Australian resident for taxation purpose during the income year of 2016-17. Minh is regarded to be foreign occupant since the behaviour relating to the time spent in Australia fails to reflect the extent of continuity, routine or habit, which is consistent with being an Australian resident. The income derived from the Malaysian business will be subjected to tax including the tax rates and the withholding amount (Burkhauser, Hahn and Wilkins 2015). Minh being a foreign a resident will be required to lodge the annual Australian income tax return for the investment income derived in Australia from the Australian source. The current case study is associated with the determination of the alternatives arising out of the proceeds from the sale of the town house that could be held for assessment in respect of the ITAA. The case study introduces the situation where the Jack has inherited a small family land that was located in Melbourne. Jack undertook the decision of retirement from the farm business. With his children, having no interest in farming business Jack decides to engage in the discussion with accountant who further provided Jack with advice of selling the farm to the property. Following the meeting with the property developer Jack was advised to cease the activities of farming and should subdivide the land. He undertook the decision of subdividing the land commence construction of houses, which could be sold. Following the completion of the Building Jack engaged with the real estate agent and sold the twenty houses and made a profit of $300,000 from each of the houses. Several instances have been noticed where the landowners have the opportunity of subdividing and selling the land that was owned by them for a very long period (Carling 2015). The usually takes place where the primary producers owns the land on the outskirts of the urban areas and the expansion in the residential represents that the proper use of land is for the purpose of residential rather than using the land for farming purpose. On certain circumstances the activities of property, development undertaken by the owners is regarded very substantial since it possess the prospect of deriving large amount of profit from the project. Important considerations must be paid to the circumstances where a small to medium subdivision might qualify as the mere realization of the land and when the project may turn out to be a profit making undertaking or business (Jacob 2016). In the circumstances where an individual owns the land, which is suitable for development, would want to make sure that, the profit that is derived from activities of development is held as capital account. The landowner under such circumstances can undertake the decision of selling the entire property to the developer. As held by the federal law court in the event of Westfield Limited v Commissioner of Taxation (1991), a lone sale of the asset that is not bought for the purpose of resale at profit or development would meet the requirements of being held as the capital receipt (Hail, Sikes and Wang 2017). As evident in the current situation of Jack subdividing the land that was used for farming and building houses for selling them holds the substantial relation of deriving large amount of profit from the project. However, there are certain alternatives where the proceeds from the sale of town houses could be assessed under ITAA (Chardon, Freudenberg and Brimble 2016). In respect to the current case study of Jack there are certain alternatives based on which the proceeds from the sale of subdivided land could be held for assessment under the Income tax assessment act are as follows; The subdivision and the sale of land might qualify as the mere realization of the capital asset. The scale of business might be in such manner that it may constitute carrying on of a business of property development by the taxpayer (Tax 2015). The development might go beyond the concept of mere realization of land but may shortfall of the requirements of carrying on of a business. In such a situation, it would be characterised as the profit making undertaking or scheme. As evident from the current case study of Jack, the three alternatives has been demonstrated above that could be put into use to determine the assessment of the sale of town house by Jack under the provision of ITAA. In context to the alternatives mere realization of capital asset is applicable on Jack since the property was subdivided and sold by the Jack in 20 lots. The judgement of federal court in Allied Pastoral Holdings v FC of T (1983) has defined the circumstances of mere realisation of asset (Coleman and Sadiq 2013). Several authorities have affirmed that the taxpayer having land constitute a capital asset and development of land in an enterprising manner could consider the profit derived from land as the mere realization of the capital asset given the development is not more than the mere realization of the capital asset. Prior to embarking on the detailed analysis of present situation of Jack in establishing that the building of house on farm land is a mere realisation it is necessary to determine whether Jack has acquired the farm land for the purpose of resale at profit or development (Kenny 2013). Therefore, the income generated from the sale of land would be held assessable as ordinary income notwithstanding of the sale of property. Therefore at the time of advising Jack relating to the above stated issue it is necessary to determine whether there are any evidences of profit making intention at the time of acquisition. The taxpayer in the instance of Reiger v Commissioner of taxation confronts the same problem of mere realisation of capital asset (Krever, 2013). An argument was bought forward by the taxpayer where the acquisition of land was for conducting the palm nursery. As the matter of fact that taxpayer planted some palm trees on the land but did not went around in the form of business manner. The declaration of intention relating to the subdivision of land was regarded fatal in the argument put forward by the taxpayer where it stated that their purpose was to establish business on the property. The taxation ruling of 92/3 states the views of the Australian taxation office where the courts have considered the issues in ascertaining whether an individual taxpayer who has undertaken the activity of land development constitute a mere realisation or have embarked on the profit making undertaking. The principle of mere realisation is stated in the Californian Cooper Syndicates v Harris (1904) (Morgan, Mortimer and Pinto 2013). A well-defined principle has been stated related to the determination of income tax where the taxpayer ordinary investment decides to realise the land and derive a higher price for land then the taxpayer has initially attained it. The higher price is not a profit based on the provision of SD of the ITAA 1982 taxable under income tax. Citing the reference of Westfield Limited v Commissioner of Taxation the court ruled that as soon as it is evident that the action of purchase and sale resulted in profit does not constituted an activity under the ordinary course of business (Sadiq et al. 2014). Alternatively, an ordinary event arising out of other business activity the profit that is in question would be a part of assessable income in respect to ordinary concept given the taxpayer has the intent of making profit at the time of acquiring the property. The law court even went on to the extent of stating that even though the profit making objective might lack depth, the means of attaining the profit by the taxpayer could be an alternative through which the profit could be realised. The taxation ruling of 92/3 determines that a taxable profits originates given that the taxpayer enters into the transaction or by act of law with the objective of making income through one specific means but generates income through other means (Woellner 2013). The issue in the present case of Jack is whether the activities of land development that the landowner has undertaken possess the character of business processes or has the character of profitable transaction. As apparent from the approach undertaken by the Australian taxation office in the taxation ruling of TR 92/3, the ATO is largely reliant on the opinions stated under Miscellaneous Taxation Ruling of MT 2006/1. In ascertaining whether the factors profits generated by the taxpayer is from the one-off subdivision of land would constitute a mere realisation or profit deriving undertaking several factors have been stated by the ATO under MT 2006/1 that are as follows; Is any alternation in the purpose for which the land was held? Whether there is any arrangement of subdivision of land. The ATO states that not a single factor is decisive given there are other factors existent. Opinions may vary that subdivision of property into a small number of plots might constitute as the mere realisation of land. However, this is not the case at the time of applying alternative of mere realisation in the case of Jack. It is vital to appreciated the decision of court in the certain cases indicating that building of houses or land development consisting of several number of lots would still constitute a mere realisation. As held in Casimaty v F.C of T (1997) where the subdivision of farmland over 80 lots was regarded as mere realisation of the farmland (Woellner 2013). The court accepted that the property was used for farming for several years and the decision of subdivision was entirely because of the increasing debt and poor health of the taxpayer. Citing the example of McCorkell v F.C of T the court stated its verdict that subdivision of land that was earlier used as orchard would constitute a mere realisation of the property. Considerably the case of Statham v F.C of T (1989) a development of 105 lots beyond four stages was held nothing less than a mere realisation of the capital asset (Sadiq et al. 2014). In the current case of Jack, the land acquired by him and sold after a longer time it is very likely the subdivision and sale of twenty townhouse would be categorised as the mere realisation. 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