Sunday, December 8, 2019
Case Study of the British Residents-Free-Samples for Students
Questions: 1. Whether Taite and Aramis would be operating through a permanent establishment, and discuss the role the permanent establishment plays in determining their liability to tax in Australia. 2. Assuming the taxable entities involved are a resident of Australia for tax purposes discuss whether interest expenses will be deductible prior to commencing business activities, during the life of the land development business and after the sale of the business. In particular explore the effect refinancing may have on the deductibility of interest expenses after the planned repurchase, 3. The deductibility of the expected losses after repurchase 4. Whether the fact the land is trading stock for the subsidiary means they will be exempt from CGT on the sale of the subsidiary 5. Identify the business risks associated with this plan and suggest some risk management strategies. Answers: Introduction The given report is based on the determination of permanent establishments of the given tax entities. In the given case, the taxpayers Taite and Aramisa are British residents and the given taxations acts of UK will be applicable for them. Both the partners are the on the verge of the entering into a business which involves the activities related to land and building development. The business is done by establishing a parent company and then financing it through the 100% subsidiary, the whole business will incur cost and income which will be taxable in Australia since the company plans to operate through a permanent establishment in Australia. The concept of permanent establishment is explained in Australian tax Act where there arises incidence of tax or according to the place of operation of business or the source of generating income or where the incidence of tax. 1.The case study of the British residents Taite and Aramisa needs to identify whether the parties are liable of tax in case of Permanent Establishment. Subsection 6 (1) of the Income Tax Assessment Act 1936 gives a proper description of Permanent Establishment. In the given case study, both the parties want to set up their parent company at a commercial rate by making use of their respective borrowed money for the purpose of permanent establishment (Glendon, Clarke McKenna, 2016). As per tax ruling, Taxation Ruling TR 2002/5, sub section 6(1), Permanent establishment is a place, where individuals established commercial tax forms for the purpose of carrying their respective commercial activities. In the case both the partners wants to carry on the business through a permanent establishment , where they want to engage themselves or have a place of business or the construction work and they will be operating through a agent and the place will be solely used for the purchasing of merchandise or operation of the land development. (Kabinga, 2015). From the given case study, it is also observed that both the parties Taite and Aramisa business cannot be considered as completely permanent as it involves buying and selling of their respective land and property. According to sub section 6(1), such activities cannot be termed as permanent, and therefore, their respective first criteria failed. According to the second criteria, the given business is a temporary business where the place of carrying the respective business is present under description PE as per sub section 6(1). From the case, Applegate v. FCT78 ATC 4054 at 4060; (1978), it can be inferred that permanence cannot be represented everlastingly. The permanent is the phrase that has shown the differences between either the provisional or the temporary. It has been further been determined as the assessment of truth whether temporary permanence prevails. Nevertheless in the case of Taite and Aramisa, they have to stay at least more than a period of 6 months, in order to consider themselves at temporarily permanent. Role of permanent establishment in case of determining tax liability in Australia The subsection 6 (1) of PE under ITAA 1936 defines the exact meaning and terms of permanent establishment. It plays a major role in determining an individuals tax liability in an effective manner. It can be also inferred that permanent establishment also plays a major role in case of both domestic as well as global law. It also forced to introduce law under UK 1946 Double Tax Agreement. This concept also plays a pivotal role in determination of tax treaties, where it identifies whether trade has been partial or fully carried out as per the contract of the given parties (Taylor Richardson, 2013).The concept of permanent establishment has been described in the Australian Tax Law and it is defined in the act. PE is defined in most of Australia's tax treaties to mean, among other things, a fixed place of business through which the business of an enterprise is wholly or partly carried .This is consistent with the primary meaning of PE in the OECD Model Tax Convention on Income and on Cap ital. The role of Permanent Establishment is a very important criterion in determining the role of the tax liability is Australia. The place of establishment is important since the liability and incidence for tax for the assesse is dependent on the criteria based on the incidence on tax on the location or place of business of the assessee. Permanent Establishment is a place where the assesse carries on the business through the agent and it can be the place of construction project or a place where the assessed is engaged as a broker or commission agent. In Australia it was first used in our tax treaty with the United Kingdom signed in 1946. It appeared specifically in Australia's domestic tax law outside the tax treaty context in 1959. 2.Taxation Rulings TR 2004/4 helps in determining whether interest rates are deductible prior commencing or during life or during sale of business when the concerned parties are residents of Australia. It is evident from the case study of Taite and Aramisa that the re-financing of the organizations existing loan needs a huge among of initial borrowing which also includes their respective interest expenses. Also, the deductibility of interest expense may also consider the extent of the borrowing of loans and the exact usage of it (Wilkins, 2015). According to the case, Kidston Goldmines Ltd v. Federal Commissioner of Taxation, the judgment was given by explaining the concept whether the funds were used based on individual purpose or not and it became important in the assessment of deductibility of the interest expense. It remains to be seen in case of Taite and Aramisa, whether interest expense took place during any income generating activity or not.There is an expense for the borrowed On the other hand, according to the case, Texas Company (Australasia) Limited v. FC of T(1940) 63 CLR 382, it has been seen that Australian taxation system takes into consideration, the interest on borrowed funds in order to safeguard the respective capital. The tax structure is considered in order to finance the interest on the loan from the borrowed capital.In such cases, interest is regard as capital asset in the initial stages and later it is involved in any income generated activities (Glendon, Clarke McKenna, 2016).Therefore, in case of the given case study, Taite and Aramisa, interest expense can be considered as capital expenditure as in this case, capital asset is created while interest payment is also becoming recurring. However, this cannot be considered as an advantageous position for Taite and Aramisa. As per the principles of FC of T v. Roberts, it has stated that as per the case for the particular type of considerations and it has stated that there will be different types of the stated consideration that enables the both of the partners to take the decision of refinancing so that they are regarded for the deductions taken from the partnership capital. The case of Texas Company (Australasia) Limited v. FC of T(1940) 63 CLR 382 has stated that the considerations of the borrowed interest funds which has been based on the protection of the capital which has in terms of the existing income and producing activities . 3.Section 8-1 of the Income Tax Assessment Act 1997 defines the concept of deductibility of expected losses in case of any re-purchase. On the other hand, the taxation rulings of TR 95/2reflects that such losses cannot be considered as capital expenditure in case of attainment of taxable income of a respective taxpayer. In case of the case study of Taite and Aramisa, the loss incurred by the taxpayer clearly meets the requirements of section 8-1. According to the case, FC of T v. Smith92 ATC 4380, interest on borrowing will be considered as deduction to the extent up to which capital was engaged in the business with a view of producing or acquiring the respective taxable income. Therefore, in case of the given case study, the commercial aspects need to be considered in case of deduction of expected losses (Taylor Richardson, 2013). Apart from this, it can be also inferred that expenditures will be deducted according to section 8-1, if that particular expenditure has a direct link with the activities and function of the respective tax payer. Therefore, in order to calculate for the loss of the parties Taite and Aramisa, considerations must be given all the factors which are surrounded around all the events of losses of the concerned parties (Kabinga, 2015). The expenditures which was incurred in the business and the sale of the subsidiary and thus it will incur losses due to the continuous losses due to interest expenses. Since the loans will not be paid therefore the interest on loan has to be paid continuously. Thus the losses will be paid continuously, therefore Taite and Aramisa shall consider all the factors of for the concerned losses. It can be also inferred that the existing scenario fulfills all the requirements of section 8-1. As held in the case of FC of T v. Riverside Road Pty Ltd90 ATC 4567 the court has come to the conclusion that the use of the summarized principles which is concerned with the deductions under section 51 (1) of the Act . It is important to note that the expenditure should have possessed sufficient association which will function and thus proportionately generates assessable income to meet the statutory criterion for carrying on the business. Necessary attention must be paid in determining the deductibility of loss for Taite and Aramis for the objective surrounding the loss. With reference to section 8-1 the existing scenario successfully fulfils the criterion of the taxpayer (Robin 2017). 4.(Trading stock exempted from CGT) Capital Gains Tax or CGT refers to those taxes, which is paid on capital gain on the respective income tax of a particular individual. It can be inferred that if an individual acquires a vacant land for private purposes, then it is taken as a capital asset and it is subjected to CGT. On the contrary, if the same land is acquired for business purposes, then, it is termed as trading stock. Land is considered as trading stock for the purpose of income tax. In case of Taite and Aramisa, land can be considered as trading stock as they bought the land for the purpose of re-sale. Therefore, capital gains is not at applicable, where land has been used as trading stock. The land is used for the business purpose therefore it is taxable as profits and gains from business and profession. The land which they acquired was not used by them personally so the tax which was raised from such sale is not allocate to capital gain tax and the proceeds would be treated or the taxation purpose as business g ains. In addition to this, it can be inferred that proceeds from capital gain will not be treated as capital gain since trading stock is exempt for the purpose of tax as capital gain. (Fry, 2017). 5.(Business risks associated with the given plan) Taite and Aramisa are certainly like to face several types of business risks which is associated with their respective plan of business operations. These risks are as follows:- Increase in cost of raw materials associated with construction It can be inferred that economic conditions of a country may change with due course of time. Therefore, prices of raw materials, along with construction costs will probably rise with them. Therefore, it is of great essence to keep a contingency plan in order to tackle the risks of higher costs with due course of time (King, 2016). Increase of rate of interest Another business risk that Taite and Aramisa may face is sudden increase in rate of interest. It can be deduced that there is a huge possibility in increase of interest rates in the given industry. In that case, if they borrow money, then they will have to also pay a higher amount of interest rate as well. In addition to this, there is bound to be huge variations in demand and supply of property market with due course of time. Therefore, it is important for Taite and Aramisa to manage these risks in a timely manner (Glendon, Clarke McKenna, 2016). Risk management strategies The first step of risk management strategy is to identify the risk management strategy and the step or the strategies formulated by the management to identify and take precautions. The type of risk varies from business to business but the one has to prepare for risk management strategies so as to hedge or offset the risk involved in the project (Fry, 2017). Balance scorecard: - Taite and Aramisa can implement the strategy of balance score card in order to view all their future strategies effectively. The tool is very effective and is one of the risk management risk strategy, the company formulates the strategy thereby addressing critical problems and then analyzing the task and at last this step is to prioritizing the risks by them. With the help of this tool, they can prepare a contingency plan and also minimize their loopholes effectively (Maurer, 2017). Sensitivity analysis:- The above tool helps to evaluate the future profitability of the firm with due course of time. It has different type of independent and dependent variables, which have a considerable impact over their outcome (Wilkins, 2015). Sensitivity analysis is a technique, which is used by the company in adverse situation when there is a change in the risk and it is easier for the person to identify key variables and the consequences it will have on the profit if there is any change in the investment. Taite and his business colleague Aramis are planning to set up a new company and they want to finance the project with the loan so this strategy of sensitivity analysis of risk management will help both of them to do the business effectively (Basak, 2016). Feedback from stakeholders An effective feedback from the given stakeholders also helps individuals to make necessary steps and minimize their respective variances. Taite and Aramisa can take feedback from their respective stakeholders and conduct a proper audit of their plan. Based on the evaluation, both of them can take necessary steps in order to minimize their respective variances. This will further help them to understand their respective outcomes based on the respective sections of Australian Taxation. Conclusion It can be concluded that several tax legislations are applicable for the case of Taite and Aramisa for their activities of dealing and holding of land. 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