April Updates

Speaker 2 Welcome to episode 1 of Tax Talks. Today we'll be running through April 2026 up tax updates. I'm your Co host Rajan Verma. Speaker 1 I'm your Co host Andrew Henshaw. Speaker 2 So we don't have a guest today, just Andrew and me talking about taking a technical look at the main tax cases, proposed legislation, Ato guidance and just general updates from April. Well. Speaker 1 It's probably a good idea, Rajan, because that we don't have a guest on this first episode because we've actually got a jam packed agenda. There was so much that happened during April 2026 and I want to kick things off with a bit of rampant speculation because I think that's always a fun place to start. And in tax, you know, we're always what you're feeling questions from clients about, OK, what if the government do this, that sort of thing. So let's start with the issue that's that's being bandied down around a lot, the 50% CGT discount. The discount. Yeah. Now, now I'll, I'll clarify we're we're recording this on one May, was it 1 May? Speaker 2 It is one may. Speaker 1 Good. We're recording this on one May and the budget's to come. But you know what, what's your take on on, on, on on out of zero to 100%? Is there going to be something on the CGT discount in the budget? Speaker 2 Look, there almost certainly will be. I just cannot imagine that the government has a social licence to do it. The government is in need of funding. They've literally been given the ticket to do something about the CGT discount and it's all being done under the guise of intergenerational inequity, which I think we can all agree there is within the tax system. There is certainly a perception that the 50% discount is too generous and it favours certain people over others. And this has just been such a huge, huge topic in the media. It's it's certain that something will happen with it. Speaker 1 Yeah. And then I guess it's, you know what's there's, there's some models which were thrown around I think in there there was a Senate committee. But yeah, I think the models that were sort of at least the sort of things that have been thrown around at least in discussion is OK. Well, what if the discount goes entirely, What if the discount is reduced maybe to 40% or 33 1/2 or or a quarter or some of the other things that were in the media was what if we go back to indexation with with the CPI rate and and and so forth. And then I think the final question is around is, is our grandfathering in transition? Speaker 2 Yeah, I must say that I, I, I think over the last few months, I've flipped and flopped on all of those issues. I, I think I initially thought that the discount would be reduced from 50% to maybe 33% or 25% or something like that. My current thinking now is that they're going to go back to the indexation model, which is really interesting because the reason the indexation model was removed to begin with was because it was too complicated. It was really hard to actually work out what your, what your capital gain is going to be. But now it looks like they're perhaps moving back in that direction. And then on the point of grandfathering, my initial thinking was that they were going to grandfather it so that if you held existing assets that you'd still get the benefit of the 50% discount. But then I, now I'm thinking, well, that's going to add a huge amount of complexity within the tax system. Now I'm thinking that they won't grandfather. But then apparently there was a statement from Chalmers recently in the media that suggested that you don't have to worry if you've got like existing investments. So that would suggest there is grandfathering. So I, I just really don't know. And to be honest, I'm starting to think now that I don't think the government even knows. I think they're still working it out. Speaker 1 I suppose if it's if it's index age, if it if it was reducing the percentage and there was no grandfathering, that would be a a big hit. But perhaps with that comment, you know, if it's going back to indexation and it's sort of retrospectively going back to indexation, maybe maybe that just doesn't result in as big of a hit. But but I agree with you that no one really knows. And then I think the other thing to throw on it is, is this something that's just going to affect housing? Is that residential housing? What about, you know, your small businesses and the yeah, if you got a, if you got the small business concessions, great. But what if you fall outside of that? I, I would, I'd think it'd be unlikely that the, the government would want to go from a situation. If you're a small business owner, you get the concessions, it's tax free. And then the, the, the second you dip out of those that you're a, you know, 47% tax, for example, on the sale of a, of a, of a pretty small business. Speaker 2 Well, that's, that's, that's right. And I think the other consideration too is that, you know, it's also like, what's the reason for doing this? If it's if it's because of intergenerational inequity, then it doesn't make sense why you would limit this change to the 50% discount to just housing. You would extend it to all CGT assets if it's about housing affordability. And I know that's come into the mix at various points then yeah, maybe you would say it only applies to residential housing. But then if that's the case, then what happens with mixed-use assets that might be part, part commercial, part residential or something that starts commercial turns residential or vice versa? So my thinking, and again, this is all speculation, we don't have any inside knowledge on this. But my my feeling is it will just be all assets basically covered under the same rules. Speaker 1 Yeah, I think. I think whichever way you go, you're either in a situation where there there could be a big Cliff or an unfairness or if that's tried to dealt with, it's going to be complex and it's going to be, you know, if we're talking about, OK, maybe it's all based on the market value as a budget night, for example, OK, well, residential property that's, that's easy enough to work out, but enlisted shares. But what about unlisted private companies and and other things? Like there's going to be complexity one way or another with it. Speaker 2 Absolutely. I, I just, I just couldn't see that being the model just because it's so complicated. So either it's just going to be retrospective and apply to everyone or perhaps existing investments are just all grandfathered. So, but that also then raises the issue that you've got some people who are getting the 50% discount and then you've got everyone else who isn't it. Speaker 1 Becomes almost like a pre CGT asset type status where we've now going to have rules about our pre, you know, May 2026 asset and and then then you have a stack of rules for that and integrity measures and all this sort of stuff. Speaker 2 I must admit I do get pretty excited when I say pre 85 assets and maybe this is this will be a new sort of line in the sand where we talk about pre May 26 assets and we get very excited about those. Speaker 1 Yeah, yeah, yeah. Well, we'll I guess the next next time we'll have a bit more to to say about exactly. We should see where sort of like at least what the government actually does, if anything. But I agree with you. I think it's it's almost a certainty that there's going to be something. But yeah, we'll be unpacking it next time, I think. Speaker 2 Yeah, absolutely. And. Speaker 1 What structuring decisions that fix and you know, discretionary trust versus companies and and all that sort of stuff. Speaker 2 100% and certainly by the next time we get together to discuss, we'll we'll have some answers. Yeah, last. Speaker 1 Well, let's on the topic of I guess sort of government changes and announcements, perhaps let's move on to talk about another CGT, one that's affecting nowhere near as many people as as as the 50% discount, but another CGT issue. That's that, that's that, that. That's the government have made policy announcements about. Speaker 2 So this one concerns foreign residents, CGT withholding and this one's there's been quite a bit of noise about this for a couple of different reasons. I, I guess the starting point is that the proposed government amendments here will, will sort of broaden out the application of the of, of, of the capital gains tax to non residents. So just to take a step back, Division 855 Income Tax Assessment Act 1997 contains basically the rules that specify how non residents pay tax in Australia on on CGT assets. And basically it says that, well, if they're what's called TARP or taxable Australian real property or indirect interests in such property and then certain mining quiring rights and whatnot, then you know, that's the kind of asset that a foreign resident will be subject to tax. So for example, if you're a foreign resident, you own land in Australia, you sell it, you're going to be paying CGT here, you can't get out of it because you're a non resident. So that's very clear. And then there's also situations where you might be selling shares in a company that owns real estate or or other property in Australia. So that's broadly what it does, but it seems that lately there's been some confusion around what TARP means. Speaker 1 What is property? Speaker 2 Yeah. What is property? The thing is that property wasn't actually defined in the tax legislation, right? So it took its general meaning and there's been some cases recently that have concerned, I guess, electricity transmission assets where it was held that the lease interests in those assets were not property. I should mention actually that the definition of TARP was actually amended a couple of years ago to specifically refer to a lease. The Ato always took the view that leases over real property were covered, but there was a specific amendment to legislation that that made that change. So the issue that came up in these electricity sort of transmission cases was that, well, if I've got a lease over network transmission last asset, which is what these cases were concerned with, then is that top? Yeah. Is that property? Yeah. And the interesting thing was that there was nothing in the legislation that specifically included it. The court said, well, we've got to look at the definition of of real property. And the interesting thing was that in one particular case, it was YTL they they actually said that well, in working out what property, you've got to look at the broader context, the situation, the taxable facts and that included state based legislation and there was apparently. So that case was SA, there was specific state based legislation that said that in the case of like electricity transmission assets that effectively the the the interest in the leased asset was actually severed from the land. It wasn't property. Yeah. So that then infected how the CGT analysis it, it completely affect infected the CGT analysis. And so they were ended up in a situation where it's it's not subject to CGT. Speaker 1 Yeah, so we had, we had a couple of cases the Ato lost, including the YTL case where these, these these things that, you know, they don't really come up in private practice. You, you just normally just talking about freehold interests. But these these other things that are I guess land like that the courts are saying they're not actually real property because you've got to go to a state based definition and that actually is not included. Therefore, when your your non residents sell no CGT. Speaker 2 That's right. Yeah, that's right. And obviously the neither the Ato nor the government was happy with that. That's what's prompted these changes to be made. So the really interesting change is, is they're going to introduce a definition of real property in the 97 Act. There hasn't been one before and that will clarify that it's not just land, but it's also assets, you know, that, you know, effectively economic interest in land. And that would include things like fixtures and and that sort of thing, whether they're attached to the land or not. So it's very much broadening the the scope of Division 855 and what gets covered as part of that. They were also going to specifically include water rights and water entitlements in the definition of of of TARP. So assets to get affected. I mean, obviously that wasn't what the electricity cases were were concerned with. But I think the government thought, look, while we're there, we might. Speaker 1 Might as well keep going. Yeah. And that was the other changes about the, the 365 day testing requirement that you can't just meet the, the, the if you're selling shares, you can't just meet the test. Speaker 2 The day before, yeah, that's right. Yeah. So that that sort of refers to the indirect interest in properties. So if you're selling shares in an entity or units in a unit trust, for example, you've got to like Division 855 won't apply unless you meet the principal asset test. And that sort of you've got to demonstrate that, well, more than 50% of the market value of our assets is made-up of top. And if you meet that threshold there, the shares then are also top or indirect top interests. Now the thing was it was a point in time test. So what you could do is, and I think what perhaps some people did is right before the CGT event, you stuffed the company with non top assets. So it could be cash or it could be other things. And so you caused the PAT, the principal asset test to be failed. And then therefore you don't actually have, you don't actually get picked up under those CGT rules. Now as you said, it's not a point in time test. It's like if you satisfy the principal asset test at any point within 365 days prior to the CGT event, you're caught. Speaker 1 Yeah. So if you sold some land or something three months prior, then you know that would, that would affect the, the, the, the percentages on the day that you then sell the shares. But the problem, well, you're going to have to look back in the last 365 days, but we knew that was coming. That was, that was a federal budget. Now it's been a couple of years ago that that was going to be done. Speaker 2 Yeah, that's right. It's nothing new. We knew about this a year or two ago. It's it's just finally with the other changes and the change the definition of of TARP and real property, this is being brought into it also. Speaker 1 I think the most interesting thing is, is the point around that, that, that that's proposed that with this definitional change around real property covering you, you know, things that aren't falling under that definition as it was, that that's going to be broadened. And for some things that's going to go all the way back to 2006, I believe. Yeah. Which is just, you know, we normally talk about there's the, you know, government retrospective legislation, all that sort of stuff, but literally going back 20 years on on this point. Speaker 2 And I look, there was a lot of outrage about that because the, the way that this was expressed was, well, this is clarifying what the law always was. Most practitioners kind of see it as a as a change. It's not clarifying anything. It's changing. Speaker 1 The courts clarify what the what the law is not, not the government. Speaker 2 So, yeah, so these changes are expressed to have retrospective application back to 2006. And naturally commentators, practitioners, taxpayers were concerned that transactions that may have long since settled and completed are now they're now getting caught up in this. You know, they're now potentially going to be reopened by the Ato. Now importantly, the Ato actually released a statement. I was on the 21st of April 2026 and this was on their web page where they said, look, typically we won't look at things that are more than four years ago. So they're not the Ato is not looking at this as an opportunity, or at least this is according to their their press release. They're not looking to go back 20 years, but they're not saying they won't. It's usually more that if there's a reason for them to look at it, I think that they're more interested in matters that are currently under review for transactions that may have happened within the last four years that they're currently reviewing, they're more interested in those they're not. Speaker 1 Really or an audit that started you know, more within four years now it's been, it could have been, you know this, this district could have been running for a number of years since then. So could be talking about things that happened 7 or 8 years ago. Speaker 2 That's right. Yeah. So if you're already under review. Speaker 1 But it's already in the in the review system. Speaker 2 That's right. So if you're already under review, and if you were sort of running arguments that you know this, it's not covered by Debate 55 because it's not top, well, these changes are going to pretty much step up your argument. But if you're not under review, then probably no need to panic. Speaker 1 Well, let's talk about the final item we have here about about legislation and we're moving very much from the the very top end of town to the complete opposite end and it's the the, the $1000 deduction. Speaker 2 Yeah, so this is an interesting one. I think for a long time it's been $300, which was basically the amount that you claim is a deduction without substantiation. That's now being increased to $1000. But I think the point to note is this is not like doesn't mean you just get to it immediately, just write off $1000. Like it doesn't quite work that way. There are conditions you need to be earning labour income and Australian residents and all that sort of thing. So you do need to meet certain conditions, but it is certainly makes it a lot easier to get those deductions. Speaker 1 Yeah. I remember when we when sort of this was discussed before legislation came out, it was, it was sort of discussed that well with a $300 existing measure. It's a relief from substantiation, but still from a technical perspective at least, you need to actually have a loss or outgoing that's been incurred. Yes, you don't have to substantiate it, but you still do need to actually have a deduction. Now this is all theoretical because I don't think anyone is going to be in the court or the Ato over a $250 deduction. But at least in theory, you know, there had to be a basis for it and it goes to tax agents, professional obligations as well, I suppose to at least have some sort of basis for that. But the $1000 is different in that it's a complete, you are entitled to the lesser of $1000 or the amount that you have actually incurred. So it's very simple in the sense that so long as you, as you said, you've got to meet, there's a labour definition like you've got to be, you know, earning a wage or one of those other categories. But so long as that's met, you get $1000 deduction without without further need for for anything. Speaker 2 That's right. So. So it's a good thing. Speaker 1 Obviously you'll. I think it's a good thing. Speaker 2 Yeah, it's a good thing. It makes it simplifies things a bit, and it's also a more generous deduction for taxpayers. Speaker 1 Yeah. And I think it just puts a materiality threshold on that. Look, if you're going to, if you're going to, you've got a choice. You either claim the $1000 or you have you substantiate everything, which you're supposed to do anyway before that. But I think this sort of sharpens the focus a little bit that, you know, if a person's going to lodge a return and they're considering the issue on, OK, what's my actual cost? Maybe it's 1200, but I don't know if I've got enough receipt. I don't know if I can be bothered. I'll just, I just claimed 1000 versus someone who's got, you know, 5 or $6000 worth of something where it's a big no. I, I, I still need to and if anything there might be further scrutiny on, on me because I'm not claiming the, the standard $1000. Speaker 2 Yeah, that's right. And and I think that as I think a lot of our listeners will know that the Ato does scrutinize deductions. You know, I mean, we've all seen it. You know, the taxpayer has had an amended assessment done because, you know, the Ato has taken out a deduction or they queried something. It's something. And every year around tax time, around lodgement time, the Ato is always coming up with statements about check your deductions, you know, make sure you know that you know you're. Entitled to claim it so it's something that they're very alive to so yeah, it'll be interesting to see how this $1000 deduction kind of plays out in practice and whether that leads to more Ato scrutiny or less yeah time will tell I. Speaker 1 Guess, yeah. All right. Well, let's turn to cases this month because it's quite a bit. We've also included a couple that are from late March as well, but there's quite a bit of activity across a range of different taxes. Let's start with FBT and the case of SEPL or or SEPAL as well. We'll call it for this. Speaker 2 Yeah, Sepal. So this one was full Federal Court 27th of March, so just outside of April, but close enough. This one concerned the application of FBT, the use of motor vehicles. And the interesting thing about this case was it's sort of it sort of toed and froed a bit actually through the court system started in the ART under a different name. It then got appealed to the Federal Court, reversed and then reversed again the full federal court in the taxpayers favour. And really the question was around whether FBT applied in respect to the use of motor vehicles by effectively the owners of of the business. And one interesting aspect and critical aspect of this case was that the business was actually being run through a trust. Speaker 1 Yes, it was a very large business to be run through a discretionary trust as well. Speaker 2 Yeah, it. Well, that's right. And they were running a it's. Speaker 1 On the on the run wasn't it on the OTRI Think it was OTR itself. Like they had like 2 or 300 different locations but they were retro. There were, there were like fuel, petrol stations mainly. Speaker 2 Petrol stations, yeah. So the so the owners were here were effectively using vehicles that were owned through the trust, through the trading trust. And the interesting thing about that is, you know, if it'd been a company running the business, then you wouldn't have had this issue because you would have been caught by Division 7A anyway. The only reason it kind of worked out for these taxpayers was because it was a trust, wasn't subject to Division 7A, so really just fell on FBT. Speaker 1 Now, a lot of cars, I think you can read the case to see all the cars, but I think it was something like 40 or 50 different cars in question. Yeah, Yeah, it was. It was an extensive list including some some pretty nice luxury cars. Yeah. Yeah. Well, you. Speaker 2 Can see why the ATL would be interested from an FPT perspective. Yes, I think that the, the important thing to note was there, you know, FPT fringe benefits, you know, there's a question about whether it was provided in respect of their employment, whether that was as employees of the business or as directors of the business. The argument that I think that that Sepple had put forward is that, well, no, it wasn't provided in that capacity. It was provided to them in their capacity as owners of the business. So there was a distinction that that they were wearing multiple hats and ultimately that was one that the court accepted. Yeah. Speaker 1 I think that as you said, there's a toing, a froing on this because the, the, the Federal Court's decision I think possibly opened it up broader than at least what I'd understood it to be previously. That look, if you've got a situation when you're thinking about FBT, you've got to apply this in respect of employment test. And when you look at that, if you've got a situation where someone's either not an employee or they wear many different hats, is it really applied in respect of their employment or is it applied for some other reason like that they're a shareholder or a director or, you know, and a pointer of a trust or general beneficiary or some other reason why this benefit is being provided other than employment. Well, and and. Speaker 2 That's a really interesting point you raised because then like how are you supposed to evidence that? I mean, obviously this case there, there was a fair bit of evidence and they went through three rounds of litigation to get there. But I mean, do you pass a resolution to say I am providing this benefit in respect of, you know, you know, your ownership of the business or, you know, so you know, you get into interesting questions about that. And, but I, I do question how broad an application this case is going to have, because as I said before, it only really works if if you're running your business through a trust. I, I'm personally of the view that no one should run a business through a trust for all a myriad of other reasons, like all EU P/E S and working capital problems you end up with. But for those who are running their businesses through through through a trust and happen to have vehicles that they're using personal use. Speaker 1 As well, because otherwise, you know, it wouldn't have an issue. That's right, yeah. Speaker 2 That exactly if it's the business use, it's not a problem. It's only if it's personal use. So you know, I think that the facts somewhat maybe it's not that niche. I mean, I guess the fact that the Ato took this all the way to the full federal court, they obviously saw this as a as a potential exposure. I think it gives. Speaker 1 Comfort, assuming that this this is where it lies and it doesn't go any further. I think it gives comfort at least to those situations as you said that there's a business that's run through a discretionary trust and someone who is in the family, let's just say get some benefit that's that's, you know, personal of some sort of nature. Then I think this is pretty strong grounds to say, well, it's not in respect of their employment and even if they draw a directors fee or something, yes, that's that's potentially not enough as well. And even if they were an employee, maybe an actual employee, maybe maybe even that's not enough as well. So I think there is some comfort for those. But absolutely take your point that you know, we're finding more and more most if not all, not not all, but a very large percentage of businesses are run through companies straight, not through discretionary trust. That's right. And. Speaker 2 I I think that certainly in our practices, we see a lot of people who are trying to restructure their affairs out of trust companies because of some of the limitations that trusts have for, for trading businesses. Yeah. So look, we might find that as time goes on, perhaps this simple case will have less and less relevance. But it was a win for a taxpayer and, you know, for obviously taxpayers who are in similar situations. Yeah, well. Speaker 1 Continuing on that theme of of taxpayer winning, let's move on to Commissioner of Taxation and Morton 2026 in the federal full federal court. Yeah. So this. Speaker 2 One's an interesting 1. Morton concerned property development, so concerned a farmer who held significant parcel of land. That land was committed to development, obviously subdivision, I presume for residential lots. I think it was something like. Speaker 1 800 lots or something. It was, it was a big number. So it's an enormous. Speaker 2 Development and this one is really interesting because the Ato has expressed some pretty strong views I mean the interesting thing this type of scenario has come up in case law over many, many decades because look, in Australia, we love property. Everyone loves property development. There's a lot of money and wealth tied up in property and over the years, over the decades, there have been so many cases that have concerned the tax treatment of property development projects and the very I. Speaker 1 Remember at university, I remember enrolling in taxation, you know, that was the first, my first foreign to tax and, and my very first case that I read was Scottish Australian mining and it was part of a sort of, I think it was week 1 or Week 2. The lecturer said, OK, I've got these 8 Seminole tax cases and I'm going to divvy them out and each person has 1 and I got Scottish Australian Mining. So it's always been my favorite tax case and. Speaker 2 It's one of the early seminal cases. I mean, I must say that even now to this day when we advising on tax implication, these sort of things, you do always look at that case even though it's over 100 years old now. But the interesting thing is that you would think that after all this time that the law would be fairly settled in this space. And yet we're finding that we're still having litigation, we're still having disputes with the Ato and now we've got Morton's case. So the really interesting, interesting thing like again just going into the background of this is a couple of years ago, I think it was back in 2018, the Ato released this property website guidance and I remember it really well. I downloaded a copy of it. The Ato has removed it now, but I, I keep that copy on on hand and it basically described the circumstance in which the Ato felt would, would say that a development of property would be on revenue versus capital account. And that's, that's, you know, and there and it gave a lot of examples, lots of different scenarios. But the thing I found most striking about is when they start talking about development agreements. So this often happens where you've got a landowner who's not a professional developer and they will then engage the services of a developer to help basically realise the asset. Now there's two ways you can look at that. One view is that, well, from the land owners perspective, they're the taxpayer. They're, they're just, they're just realising the asset to, it's to, to, you know, to it's best case basically like a Scottish Australian mining type situation. So that should be treated as a realisation of capital asset. But the Ato sort of took the view in that property website guidance that well, no, if you're, if you've engaged a developer, then we're going to look at the allocation of risk under that development agreement. But their starting position is that if you get a developer and you embark on that project, then it's changed basically once you sign the. Speaker 1 Development agreement, that's the time that it flips from capital to to revenue. Yeah, Yeah, exactly right. Yeah. Speaker 2 Yeah. So that property website guidance actually got a lot of feedback. That's not good. Speaker 1 Yeah, got a lot of attention. Speaker 2 And the Ato took it down. Yeah. And they never replaced it with anything. No. So it's too. Speaker 1 Hard. Yeah, it was just too. Speaker 2 Hard so that that website guidance disappeared but the really interesting thing about Mortons case, you see some of those principles out of that website guidance kind of being litigated here yeah and this. Speaker 1 Plan was held for ages. I mean, it was like pre CGT, it was farming land that at the time it was acquired was so far from metropolitan Melbourne that, you know, no one would ever have thought that this would be become housing one day. And then, you know, over the decades, you know, Melbourne's grown and grown and all of a sudden it's time 8 and it's a suburb of Melbourne. And they're saying, all right, well, you know, I'll speak to the developer. You do developer, you do, you do most of the stuff. And you know, I'll take my, I'll take my share of the sale proceeds from H Block. Well, well. Speaker 2 Let's see. And as you said before, it was such a huge development that the the dollars in this are enormous, like the taxes at stake are are enormous here. And so you can see why the Ato would be interested in something like this. The interesting thing though, I think the Ato generally takes the view that if it's a big one like this one, it's got to be on revenue account like it's got to. Yeah, and. Speaker 1 They seem to have. I don't know if you agree with this, but they, they seem in my experience to sort of say, look, I know that there's these old cases like Scottish Australian mining under which the Scottish Australian Mining company bought a, you know, they exhausted a coal mine and then developed sort of like half of Newcastle. I don't know if it's exactly half of Newcastle, but a very big bit of land into all blocks and sold it off. And they even built a train station, I believe, and, and it was on capital account. And then there's, you know, Casamati, there's, there's other cases over the time, but they, they say that, well, look, times have changed and it's not that easy to do a residential subdivision than it was in the Scottish Australian mining days. And because there's so many more steps now, it's essentially, well, it has to be a business because you can't. It's sort of saying that, look, I know those cases said that, but that was at a time where it was easier to do land subdivisions. That was sort of their view, I guess. Yeah, that's that's. Speaker 2 Very true. I think there's, it's often been said and suggested that if Scottish Australian mining was to be decided now, it would be decided differently because you're right, it's a lot different now. I mean, in addition to everything else, you have environmental considerations, which I'm not sure how I think they had. Speaker 1 Those not in the early 19. Speaker 2 Hundreds, but certainly these days, absolutely you do. So it's a lot more difficult now. There's a lot more considerations involved in property development. But I suppose getting back to Morton itself, I think one really unique situation with this case, one really unique fact of this case was that the taxpayer is very risk averse, incredibly risk averse. And there was, there was a comment that was made by one of the judges that said that he wasn't willing to bet bet the farm, like literally bet the farm because it was, we're talking about a farm here. Yeah, yeah, yeah. Speaker 1 And no pun intended, will. Speaker 2 Or or baby, pun intended, but but the interesting thing here was that under the terms of the development agreement, Morton was not willing to put the property up as security, right? Which makes it very, very hard. Anyone in property development would know that not many lenders are going to lend to you unless you put the property up for security. And he wasn't willing to do it. So that that's a significant fact. I don't know how many developers are going to find themselves in that situation where they can they can say, Yep, I'm on all fours with Morton. And I fully expect the ATL will distinguish them, everyone else from this case because of the unique facts of this case. But I think that was a significant factor that if you look at the allocation of risk under this development agreement, Morton just wasn't willing to take on any risk. Yeah, a lot of times. Speaker 1 People will enter those development agreements, they'll be getting a cut of profits, or they'll be putting the land up as security or there's some other incentive for them that wouldn't be there if they just sold the land to the developer. Which I think I mean, if you want to, if you want to, if you want an easy and and simple life, you don't do a development agreement. If you're the farmer, you you just sell land. Just sell, Yeah. Speaker 2 Exactly right. Yeah. And this is, I think this is probably the perhaps the thing that gets the Ato that. Yeah. If you're going to dispose of it, just sell it as it is, then it's very clear it's capital and then you know you've done nothing. But the fact that you've gone to the effort of getting a developer involved and and doing that suggests that there is a profit making motive there because you're trying to enhance the sale price, right? Yeah, where I see so. Speaker 1 I mean, I agree that point that there's, there's perhaps some limited application and I'm certain that the Ato if they haven't already will say that that you know, it was decided on its facts and you know, nothing more to see here and no general application etcetera, etcetera, etcetera. But I mean, the, the, the, the full Federal Court basically said, well, Scottish Australian mining's still good law. It's pretty much didn't say it in those words, but that was my, that was very much my read of, of the situation. And yeah, absolutely look that. Speaker 2 Case hasn't been overturned. It's still very much standing. Yeah. Or or they can't. It's a. Speaker 1 High Court case, it's a High Court case, so they. Speaker 2 Can't. It goes to the High Court. Speaker 1 That's right. Maybe this will, but well, time will tell. Speaker 2 Yeah, they're still within their review period if if the Ato wants to seek special leave. So still a bit of a watch this space. But I must say that if if you were looking at drafting a development agreement and wanted to make sure it stayed on capital account, Morton provides a very useful precedent. Yeah. Speaker 1 Sometimes I've seen. I remember seeing one recently and I think it was on domain or something like that. It was, it was basically, it was a street, I think it was in Sydney, but it was, it was maybe let's say 14 or 17 houses. And the article was basically about how they all banded together and sold it as a super site to a developer. And, and the article had kind of like a the journey and it was quite difficult for there was sort of one lead person and, you know, it was quite difficult to get everyone on board. And, you know, this, this sort of stuff. And it's yes, it's not the same as Morton, but I but these these principles are relevant to other situations as well. And I think about that situation, I think, Oh, well, look, yeah, I think it's gone capital. But maybe the Ato would say that that's enough of a, you know, business arrangement, particularly for that person. That's sort of like stitching the deal up sort of thing, which is one of the owners that maybe maybe I don't know. Well, that's. Speaker 2 It, you know, actually you, you've sort of taken me down another rabbit hole now that you know, it's, it's a beautiful story, all we all got together and, you know, faced all sorts of adversities. But the thing to note is the Ato reads the papers and in fact, I've like a lot of these development deals, the, the Ato will actually review them and, and kick them into early engagement because it's read the paper and it's saying, oh, there's this big transaction happening. How do you plan to treat it for tax purposes? And then you get, Yeah. And then you get into that discussion. So yeah, well, it might help your marketing. You gotta be careful about what goes out there. Yeah, in the press. Let's go on. Speaker 1 To let's go on to talk about Hall, which perhaps I'll sort of run through a little bit about now. Hall's an interesting one. This is a full Federal Court case and the back story to it is that we had Mr. Hall, who was AI believe in ABC sports presenter and during COVID, like a lot of us were, we weren't able to work in our normal space and we had to work somewhere else. So Mr. Hall, he'd he'd moved to Melbourne. I think he'd moved during COVID and knew that, you know, we're not going to be going back to the office for a long time. So I'm going to have to do my job from home and I'm going to need a place that's big enough to accommodate that. So I won't get, maybe if I didn't need to do that, I'd get something smaller. But given that that's, you know, something that's going to be around for a while, I'm going to need a bigger place. So I'll get a larger place. I think it's a 2 bedroom apartment and that second room, well, the only reason I'm going to do that is because I need to do my job from it. There's not someone else living in it. I'm not going to make it a home gym. I just need to work. I need a place to work. I need, I need, I need something that's a little bit of delineation as much as I can get during the the COVID era. And it was all about whether or not a portion of his rent was deductible or not. So we're talking about occupancy costs rather than running costs. And Mr. Hall was actually successful in the Federal Court on this issue. And essentially the court said yes, that that is deductible. Full federal courts overturned that. And the discussion in the judgement is mainly around two different things. 1 is about your normal, your section 8-1, what is a deduction, which is basically as we know it's a loss or outgoing incurred in, you know, the production of income or in carrying on a business. So court said yeah, that's fine. It's a loss or outgoing incurred. I think it says to the extent that, so to the extent that the rent was for that room, it's a loss or outgoing that's incurred in, you know, producing assessable income. That's tick there doesn't end there because we've got the, the, the, the, the exclusion from 8-1 for various things. So, you know, if it's of a capital nature is one of them, another one of them is if it's of a private or domestic nature. And the way I always, I always like to think about this is, well, if you drive your car to work and then you pay for car parking, Yeah, well, you could argue that those are incurred in your job. But they get kicked out because they're of a private or domestic nature or or you got young kids and you need to put them in childcare so you can. Speaker 2 Work so you can work. Speaker 1 Yeah, well, I, I it's a loss of outgoing. If the kids are there, I can't work, can't go to the office. Yeah, fine. But if I didn't have my job. Speaker 2 I wouldn't need to put them in there exactly right? Yeah, but but. Speaker 1 But you know, childcare, it was clearly a private or domestic. It has nothing to do with work other than, yeah, you might need that Nexus on the first bit, but you get kicked out on the second bit. And now the judgement is a bit dense on certain bits. But essentially what it says is that when you look at this, it has nothing that has sort of like the characteristics of a business. And it is impossible to then break it up further because in reality it's a single payment for residential accommodation. That's the best way I can explain it. And, and for that reason that even though you met that positive limb, it's, it's a private or domestic nature. I sort of feel like it's a bit, you know, maybe these are the extreme circumstances, but it does feel to me a little bit unfair because I think about, Oh well, if he just rented 2 apartments next door to each other, one was to live in and 1 was just to work from, maybe, maybe just would never have done that in the 1st place. But but if he did, then, well, I would have thought that that second apartment would be not private or domestic, even though it could be used in that way. It's just not being used in that way. You know, it's actually really. Speaker 2 Interesting because the the reasoning would almost suggest what what if you could negotiate with the landlord and say OK, I will pay you rent for the the kit, I'll pay an amount for the kitchen, one bedroom, the living room. But itemize the rent, break a second bedroom. Yeah. Separately. Yeah. And I'll pay you separately for that. Yeah. Speaker 1 Even under a. Speaker 2 Separate lease even. Yeah, call it a license. Speaker 1 Agreement for an exclusive Co working or something like that. I mean, would that change? Speaker 2 The outcome? Maybe. I think it would if. Speaker 1 You take those principles, Yeah, if you take that reason. Speaker 2 Yeah, which doesn't feel right. Speaker 1 But yeah. Speaker 2 It's interesting. Yeah. I, I must say I'm, I'm indebted to Mr. Hall for running this case because I look, ever since the pandemic happened, like accountants far and wide have been asking this question, you know, oh, can I claim part of my, my rent? Can I, can I claim part of my mortgage if I own the place, you know, or my, I work from home now. So my home is now a place of work. So when I go to the office, I'm travelling between workplaces so that now it's become deductible, whereas normally travel from work to home and, and back home is not deductible. Yes. So these questions have all come up and we can thank the pandemic for raising them all. Yes, I think this this case has perhaps given us an answer or maybe it's raised more questions. Well, I think, I think. Speaker 1 If it stays as it is, then it's really that like if you're an employee and it's your it, it looks like residential premises you bought sort of buckling's chance I think. And it's just not, it's not deductible, but I think it's different if it if it's modified in some way, if it's got a some of those characteristics of a place of business, maybe there's clients that come or, or maybe you're not an employee, maybe you're running your own business contractor. I think it might be different in those situations. And certainly that wasn't all situation anyway. But yeah, I think for the employee one, it's, it's, it's closed the door shut on. Yeah, yeah. Speaker 2 You know, actually there's, there's another really interesting aspect to this case. That whole hall didn't really have any downside risk to running this argument because he was renting, right? But I think the situation would be quite different if you were the owner of the property. Because if it was your PPR, for example, and you were seeking to claim a deduction for a portion of your outgoings relating to your working from home arrangements, you know, there's this. First of all, there's an issue about, well, are you affecting your main residence exemption in any way because you're earning income from the property or using it to earn income? But there's also this land tax issue. Exactly. I know recently people have been asking questions about, oh, the SRO is now saying that, you know, if I earn more than 30 grand of income that, you know, potentially I'd lose my PPR exemption. So all these sort of subsidiary questions come out from from this approach. Again, not only ship for Hall because it was a rental, but but if it. Speaker 1 Was an ownership one. Then there's it's a far. I think it's even, it's even harder in that type of city and because you've got those other issues and you might want. Speaker 2 To think twice before trying it on because if you're an owner, you might be giving up tax concessions elsewhere that are far more valuable. Yeah, well, let's. Speaker 1 Move on to Division 7A, away from the full Federal Court and to the Administrative Review Tribunal. We've had a recent case in Division 7-8. No, it's not Bendel still waiting on. That's still, that's still waiting, but but we don't really get too many Division 7A cases anyway. So and there's some interesting things that come out of this case. It's called Batella and the the Commissioner of Taxation. The facts themselves aren't particularly most of it isn't isn't particularly unusual. There's a small business run, they've built up loan accounts sounding very familiar. Maybe we didn't properly comply with Division 7A. You know, these things are not you, you, you hear these stories from time to time. But yeah, there was, there's really sort of three issues that were, that were looked at here, starting on the, an argument about what constitutes a, a Division 7A loan agreement. Now there was all these advances made and there it seems that there clearly wasn't a, a written loan agreement done either once or for each year. They didn't, you know, have, you know, the best practice of, of, of actually having a, a, a contract on the loan agreement, you know, containing all the terms around interest, principal diff 7-8 terms, all that sort of stuff. But I understand the. Speaker 2 Lending company had some terms in its company constitution, didn't it? Yeah, so the. Speaker 1 Argument is was that OK? Well under division 7A if you if you make a loan and it's not you don't put in place a compliant one O 9 N agreement on a before the lodgement date, then you have an unfranked deemed dividend at that point. Everyone understands that and the best practice 109 N loan agreement is to go get, you know, there's plenty of providers for that, you know, get the loan agreement in place. But they didn't do that for whatever reason. I don't know why they didn't do that. What they were relying on were provisions in the constitution of the company. And I've seen these from time to time, whereas essentially it's a fall back and says that if there's advances made for less, there's something, you know, different out there that these will the terms of division 7A109 N essentially will apply to those loans. And it was thought, I think the, the, the rationale behind that type of approach in a constitution is, look, we really don't want an unfranked DM dividend because that's really bad. So will have a fall back. It's sort of like almost like with a discretionary trust aid where you've got a default distribution. Bit of a fail safe. Speaker 2 Isn't it? It's a fail safe. Speaker 1 Right. That was the I think that's the intention with it. And so, so the argument was was that well, look, even though we didn't have, you know, anything in writing at the time, you know, they were put in the financials and the Constitution says this and tribunal said, no, no, no, that's not that's not what one O 9 actually it requires. It requires the agreement, the whole agreement essentially to be in writing. So, so one O 9 N the agreement that the loan was made under has to be in writing. And if it's partly in writing, that's not enough essentially is what it's saying. The whole of the loan agreement must be in writing. So, OK, yeah, there's some terms in a constitution, but they don't talk about the amount. Yeah, they're not. Speaker 2 Specific. Are they not specific? Speaker 1 Enough. That's the problem. I think it could work if you had the Constitution and then you had like a literally like A1 pager saying, you know, borrow a company. I've lent you this amount for this year, confirmed it's on the Constitution terms or something like that would probably be enough. But they didn't do that. They didn't do that, Yeah. Speaker 2 I know that like I remember a couple of years ago we had one of these and I know you've always had the view that you think they were acceptable or sufficient. So it seems like your opinions being vindicated by Patella 1 interesting question that comes to my mind though, is that say you say say you would in this situation, right? So you, you've made a loan from a company and you've, you know, you're relying on terms of constitution to say, Yep, we've got a written loan agreement and you've actually complied with your minimum repayments and you've, you know, you, you're basically making the payments correctly. Wouldn't you, if the Ato came and reviewed and said, oh, look, we don't think this is sufficient loan agreement, wouldn't that be a good ground for A10 9RB discretion application? Yeah, I mean it. Speaker 1 Probably would, I mean, if you were actually doing my Rs and judging your interest in all that stuff and it's just that you just it was more you failed to dot the IS and cross the T, I'd I'd say yeah, probably. But I mean, I think that might be different if it was more just, well, you didn't even do that anyway. You're just trying to save it from being a completely unfranked DM dividend to a failure to meet a minimum yearly repayment with a small unfrank deemed dividend. So I think it would depend on the rest of the circumstances. I think yes, you you might have an unfrank deemed dividend if you if you, if you if you tried to comply tried or you've tried loosely you tried to comply, but you you didn't quite do enough versus you didn't really do anything and you're trying to you know, you're trying to try this on later on a bit. Yeah. Well, I think what this case. Speaker 2 Shows is best practice is if you're making loans, have a have a loan agreement in place. Don't rely on think terms in the constitution. An interesting question comes to my mind. What about like facility type arrangements? So sometimes what happens is that there's routine loan loans being provided by a company. Every year there might be a new loan and so to avoid the the rigmarole of having to do a new loan agreement every year, people will do a facility arrangement. So it's an overarching agreement where they say that we're going to, we're going to make this, we'll lend some money. Speaker 1 Now, and we might lend some money, and we might lend some more. Speaker 2 Money later, yeah, and it's all covered by DIF 7. Speaker 1 AI think there's a real question on whether those were well, I'll back up. I think they can work, but I think there's situations where they won't work and I think there's a risk that those don't work. As you said, you put an agreement in layout covers this year. It says any further advances are also covered. Fine. You agreed that now and then later you do further advance and let's say you don't do anything else at the time. Let's say you just book it in the you know, journal entry and put in the accounts. I think the problem is it's not the exact same problem, but it's a similar problem that, well, what is there in writing about that further advance that says that it's covered on Division 7A terms and then you add to that as well. We signed a loan agreement previously that said that if we do further stuff, it's going to be covered, which is a pretty similar argument to the Constitution point. I think the way of curing it is, is each each financial year you have a drawdown notice or something like that that that's notice of. Speaker 2 Some sort, yeah, that says. Speaker 1 OK. At that 30 June, I'm just confirming that, you know, we've taken this extra money and we confirm it's on the terms of the facility agreement. That's all. That's all you need. It's not that hard, it's not that much, but I think you do need that to technically still be on one end terms. I think that's a good. Speaker 2 I was thinking the same thing too, that if you at least you had some sort of acknowledgement with each advance that then tied it back to your facility arrangement, then yeah, you could you could avoid these sort of batella type. Yeah, arguments. There were two other. Speaker 1 Points in the case one was around which, which are of interest, one is around the calculation of distributable surplus so that, that, that distributor surplus limits your deemed dividend exposures to the amount of the distributable surplus. I, I always explained as it's sort of a proxy to retain profits, but it's not exactly that, but that's roughly what it is. And the first part of it is you look at the, the, the net assets of the company. Essentially there were, there were, there were arguments that essentially 2 liabilities brought down that distributable surplus, 1 was some unpaid payroll tax liability. The, the, the, the court accept the tribunal, I should say, accepted that that was a, a liability. It seems that there was quantum issues in that it wasn't actually quantified, which makes me think that what that means is that that there was completely unreported payroll tax, because otherwise you'd know what the figure is. You'd know. Speaker 2 So I think it. Speaker 1 Was that we weren't compliant with payroll tax, but that was a liability. And I think, I think they just didn't maybe just didn't lead proper evidence. I'm not I'm not exactly sure on that detail. They also tried to argue that some, some, some, some defect claims litigation that happened where proceedings were brought four years later were a liability at the time. And and the ART said, well, there's no evidence that that was a liability at the time. No claims are brought, nothing to suggest it was. So no, that's not, that's not something to to take into account when you're looking at your liabilities that produce your distributable surplus. Yeah. The final point was again an interesting one, but one of less general application. It seems that what was also done in this situation was something that's covered by a tax alert. And essentially they interposed a company above the initial company. So they put a holding company in under a under a CGT rollover. And when you do that rollover, what you typically do, as you know, is you issue shares equal to the market value of the of, of of the the company. So let's say you're trading companies worth $100,000 and you want to put a holding company in, you would, you would act, the holding company would actually issue typically $100,000 of shares and share capital to the shareholder. So when you're looking at the balance sheet of that holding company, it's got issued share capital of of $100,000. So they did that, that's fine. But then what they did is essentially they moved the division 7A loan from the trading company to that holding company. And I think they, the, the premise was that while the holding company doesn't have a distributable surplus, because it actually has issued share capital, even though that it's not really issued share like it's a, it's sort of like a ACGT rollover issued share capital. It's not no one actually paid $100,000 for shares in the company. So the commissioner's case, what does was that was a dividend strip, which is somewhat interesting in that, well, it didn't actually strip the money out. It provided it as as as as a non DIF 7A loan. The taxpayer was saying, well, OK, I lent that money out and I'm arguing that there's no distributable surplus, but I'm still going to have to pay it back one day. So so tried to say it wasn't a dividend strip. Tribunal said nothing. That's dividend strips are pretty broad and it covers that and there is a tax alert out. And I mean practically, I mean, I would, I would just never, I would never suggest something like that. It's just, yeah, that's exactly, it went down exactly the way I would have expected it to go down if someone asked me to to, to do that. Yeah, somewhat aggressive. Speaker 2 Strategy isn't it to use a use a CGT rollover to restructure affairs so you can try and use the distributor surplus rules to then get money out of a company without top up taxes. You can kind of see why the ATL would have been pretty upset with this one. Yeah, and you're really getting to some very, very dark territory. You're getting into Division 7A, you're getting into the dividend stripping rules in 177 E These are just provisions you don't want to be anywhere near. No, absolutely not. Speaker 1 Let's move on and talk. I guess let's just fly through a few other things that that happened because there was so much, we had a, a number of High Court tax matters where, where something has happened and, and the trend was for special leave to be to be refused. There's four cases where special leave was refused. And, and the one I sort of wanted to just highlight was the Hicks Yerner case, which was in my view, the most interesting of those cases where there was a restructure done and there was arguments about dividend stripping and Part 4A, the commissioner lost on them. And, and the, my, I always thought, I thought the, the the court might grant this leave because, you know, there are quite some interesting issues, but. Speaker 2 And the Doles involvement were big. They were big dollars, yeah. Speaker 1 Yeah. And and I guess it's one point we were talking about recently was that it was sort of this principle with with tax cases that the sort of the full federal court was supposed to be the sort of final Ave. rough really for for tax cases and that not much went to the High Court. But in recent times we've sort of seen that shift. We've got, you know, a bunch of other cases which are still waiting. You know, we've got Bendel, we've got Merchant, we've got Uber and you know, there's other cases as well. So I don't know, maybe we're maybe we're going slightly more back in that direction, but now it's an exciting. Speaker 2 Time to be a tax practitioner, that's for sure. There's a lot of lot of things happening. And when you get the High Court now becoming more involved in tax cases, you know, it's, yeah, there's certainly a lot, a lot of change on the horizon. Yeah, let's let's move on from the cases and talk about some ATOATO technical products, so some releases that they've had recently. The first one I'll talk about is PCG 2026-D2, which is about property development arrangements in Part 4A. Now this one actually came off the back of an earlier Taxpayer Alert 2026 slash 1 and basically what the concern was with these cases. And typical, it's quite a typical structure that I've seen in practice. You've got a landowner who is looking at developing some property that they might own. And So what they do is that they engage a, a, a special purpose vehicle as a, as a property developer and that property developer will go ahead and do the development works. And, and there's some good reasons why you do that. So it basically moves the risk of the development away from the landowner. So there's a bit of asset protection there. So I think that is, is fine. The issue, though, is from a tax perspective. What was happening was that often times the actual property development entity wasn't actually doing anything because it couldn't do anything. It had no money, it had no history. So what it was doing is it would just engage the third party builder. So the developer enters a contract with the builder, the builder does all the work. Now what would happen is that as the development entity was incurring costs, it would and recognize those expenses and claim a deduction for those, but it wasn't earning any income. So normally what would happen under development agreement is the landowner would pay an amount to the property developer, but the agreement would generally say that no amount's payable till the end of the project. Speaker 1 So the developer's. Speaker 2 Got no income. It's got a whole host of losses. And what generally then happens, particularly if it's part of a broader sort of economic group where there might be multiple development entities. If you're running multiple projects, it's likely that you're you're finishing up a project somewhere. So you get the profits out of there and then you funnel it in, you soak up the losses, you soak up the losses. And that was the issue the Ato had because you would basically play this game of musical chairs. It would be a merry, merry go round of, of profits from one project being funnelled into the losses of the next project. Yeah. And then you just do that again and again, just rinse and repeat. Musical deductions. Yeah, basically, basically. So ATI didn't like it, so they released their taxpayer alert and that followed up. That was followed up recently with this PCG where they talk about sort of give some examples on the types of arrangements that are more likely what they call red zone and then those that are sort of more Green Zone. Speaker 1 This is a more recent trend with these PCGS, the 100 day, they did the same thing where there was a tax alert and then they clarified, OK, there's a red, there's a green and and with professional practices as well, same sort of thing. That's right. Yeah, it's. Speaker 2 A bit of a matrix red, red pill, blue pill sort of sort of thing. So the interesting thing about this particular PCG is there's normally like an amber zone. So, you know, a little bit risky. We might look at it, but we might not. Yeah, there's no amber zone with this one, so it's you're either. Speaker 1 Binary. It's binary. It's either. Speaker 2 Your stuff that you're not and the things that they're basically looking for is it's largely the things that they'd identified in their in their taxpayer alert. So for example, if it's related party developer, you know, if it's a situation where there's non recognition of income, you know, just again, losses just being generated being soaked up by other entities. If you got those sort of features, it's it's high risk. The low risk is basically third party developer or even if it's related party, if there's regular income recognition. So for example, if the land and owner is periodically paying the developer and there's income recognition there, then they don't get the tax benefit. Exactly. Yeah. So that's as you'd expect. Yeah. If there's no tax benefit, it's it's, yeah, it's sort of. Speaker 1 Like it's Green Zone if it's an arm's length party, you know, there's that type of thing. But then otherwise, like it's Green Zone if you don't really get a tax benefit. Yeah. And it's red zone if you're anywhere near the the tax alert. Yeah, that's it. Speaker 2 That's it. So anyway, it's a it's a watch this space. I'm sure that there's probably a few developers who've been caught up in all this and who knows, we might have some cases in the future that that really test this. But yeah, I mean I, I. Speaker 1 Would Yeah, it's it's something that because it is it it, it is. There is a lot of this and and I can imagine that there will be something at some point, but but who knows how long that would take. Watch this space. Speaker 2 Yeah. Speaker 1 And then the second one we've got here is not a new PCG, but a but an update in relation to PCG 2019 slash 5. This is one we come across quite a lot. Just these two states. We could we talk about the two year rule in that OK, well, you sell the someone passes away main residence. If you if you sell it within two years, it's it's tax free by you. I mean the estate, the estate starts within two years, it's tax free, but there's this commissioner's discretion to grant to grant a longer period and there. Speaker 2 Might be a lot of good reasons why you need that. So typical reasons are there's there's someone's made a T FM claim, for example, you've got an estate dispute or it's particularly complex estate or perhaps there've been difficulty selling the property despite best attempts or you might have a once in a generation pandemic that that gets in the way of things. So there might be good reasons why you need a bit of extra time. Yeah. And then the. Speaker 1 The commissioner does have the PCG that while there's a, there's, there's a discretion available the commissioner can exercise beyond the two years. Essentially the, the, the PCG says, well, look, if the, if the further extension isn't longer than 18 months and you fit within these criteria, then you can consider it done. You don't need to actually go ask us for the discretion. Just treat it like we've given it to you, which is an interesting thing as a product anyway. But leave that the one to one side so that if you fit neatly within that you don't need to actually and your delay is not too long, you actually don't even need to worry about actually getting the discretion in the 1st place I'd. Speaker 2 Imagine that the HO is probably getting a lot of requests and perhaps so many that they decided, look, there's some really clear cut situations where we will just grant the discretion. So let's just yeah, let's just make that public. So then yeah, people stop asking us. Yeah. And I think that's. Speaker 1 The first I think that was probably yes, very much probably done for that reason and it seems like this this other. So this change is essentially that if you need to get the discretion, you would typically do that historically through a private ruling process. You know, we've both had lots of experience doing private rulings. You, you state all the facts, you ask the question, it's binding, assuming that all your facts are correct and all that type of stuff. And you, you know, then it goes on the ruling register in a sanitized form about OK, the situation and granting the discretion. This change is that it's, it's, it's no longer going to be a private ruling. And it's, it's a separate sort of discretion request. Yeah. Through a separate web page. Yeah. It's. Speaker 2 Essentially a letter that's lodged through a web page as long as I send it. Speaker 1 Yeah. So I think, I think from a technical perspective, it it's sort of no longer. Well, I think it's no longer a ruling and it's no longer governed by the the Tax Administration Act about all that stuff, about rulings and how they work and so on and so forth. It's not on the register, all those sort of things. But I guess this is probably done for a similar reason that so many of these that it's it's this is an easier way to do it rather than the rigmarole of a of a ruling from from an Ato administrative bureaucracy type I. Speaker 2 Must admit I have some mixed feelings about this. So I think on the surface it seems like a really good change. It'll just be a lot easier than just doing doing a formal ruling and you can do it more quickly and whatnot. So that that like on the surface it sounds like a really good thing. But the things that worry me are the, when you go through the ruling process there, there's some, there's some regulations around that. There's time frames that the Ato needs to comply with. And I think as we've all experienced, Ato doesn't really comply with time frames anymore. But at least if you had applied for a ruling, you could force a decision within, within a certain time. And then there was a process you could deal with. The other thing also with rulings is that they end up on the register of public of of private rulings. Now, of course they're all anonymized, but the benefit of that register is that if you was going to seek an exercise of discretion, you could go on to that register, see what other applications people had put forward. And then it I know they're only binding on the taxpayer flavour. Speaker 1 But you get a bit of a flavour. Speaker 2 You know, you get a bit of a sense of, well, you know, am I going to be able to get it or not? I think that by moving it entirely to this sort of letter process request now, basically, yeah. It's like by moving it, you don't really have that degree of transparency that you'd have with private ruling. So and, you know, I wonder if it could perhaps lead to inconsistent decision making that some people get discretion's accepted and other people don't. And of course, you as a taxpayer will never know because you'll only know about your situation and no one else's. Yes. So yeah, it's an interesting change. Again, I have mixed feelings about it, but I guess we'll see how it plays out. Yeah. Speaker 1 Well. Speaker 2 In terms of state. Speaker 1 Taxes, we don't have any any, any ones that we wanted to raise this month. But but like the federal budget, there are state budgets coming up, the Victorian ones coming up quite soon. NSW isn't too far behind. We'll see what what developments come out of come out of those as a as a. Speaker 2 Victorian I I can only hope that the state government here doesn't doesn't impose new taxes. I suspect they won't give and it's a it's an election year, yes. I think the state government's more in the mood of handing out money at the moment, yeah, rather than extracting more. Yeah. But honestly, with state taxes, there's there's there's always a lot going on. But the, the one thing I'm really hope sort of waiting for is the Uber decision. Yes, the High Court. So that's probably still a while away, but yeah, been waiting for that one. Yeah, well, there's there's. Speaker 1 Lots of things coming up that we've got, the federal budget we've got, we've got Bendel at some point. For listeners, if you have any questions, anything you'd like us to to discuss, please feel free to reach out. You can send us an e-mail at [email protected] dot AU. We love any feedback suggestions. If you want to be a guest, you know, feel free to reach out and but otherwise we'll look forward to you speaking to you in our May update, which will be episode #2 we'll be unpacking the budget and all other things that happened in tax in in in May. It'll be a good. Speaker 2 One and we'll finally have our answers to the question about the 50% discount and what's happening. Yes, looking. Speaker 1 Forward to it. Thanks very much, Andrew. Speaker 2 Thanks. Thanks, Raj.