Unlike some other commentators, A. H. Slater QC, ‘Part IVA Reform’, TTI (National), 14 March 2013 does not consider the proposed Part IVA ITAA 1936 general anti-avoidance rules reform as currently expressed to be heinous.
Tony Slater also suggests that parts of the reforms are ineffective at achieving the policy objectives and may be more restrictive on the Commissioner’s prosecution of Part IVA litigation.
Tony considered that Part IVA was effective and did not require reform.
In FCT v AXA Asia Pacific Holdings Ltd [2010] FCAFC 134, FCT v Futuris Corporation Ltd [2012] FCAFC 32, RCI P/L v FCT [2011] FCAFC 104, News Australia Holdings Ltd v FCT [2010] FCAFC 78 the Commissioner failed because the evidence did not support the reasonably expected counter factual (pg. 4).
In determining whether a postulate is a reasonable alternative ‘particular’ regard is had to the substance and result and consequence of the scheme rather than the transaction and give undue weight to non-tax considerations (sec 177CB(4)(a) ITAA 1936; pg. 9-10). This amendment opens up new arguments (pg. 10).
In
determining whether a postulate is a reasonable alternative, one must disregard any
result that would be achieved by the postulate for any person (whether or not a
party to the scheme) (sec 177CB(4)(b) ITAA 1936).
This amendment inappropriately excludes consideration of the tax
consequences of others and may impede the Commissioner in
applying Part IVA (pg. 11).
The disregard of the ‘do nothing postulate' accurately reflects the policy behind the amendment and should result in taxpayer’s abandoning arrangements where absent the scheme they really would have done nothing. (pg. 12)
The inclusion of the requirement that a decision that a tax effect would have occurred must be based on a postulate that comprise only the events or circumstances that actually happen or existed does not add anything to sec 177C(1) ITAA 1936 and does not adequately address FCT v Trail Bros Steel & Plastics P/L [2010] FCAFC 94 (pg. 13).
This amendment is unnecessary being self evident or not addressing the phrase ‘might reasonably be expected’ which is problematic for the Commissioner or the policy objective has miscarried (pg. 15).
The amendment may impede the Commissioner by excluding from the process of reconstruction of the tax benefit the ability to consider what would have happened by limiting the consideration to what actually happened (pg. 16).
The disjunctive ‘would have been…or might reasonably be expected to have been’ may necessitate that there is only one alternate postulate (RCI P/L v FCT [2011] FCAFC 104 at [132] & [138]). The amendment by referring to ‘a’ rather than ‘the’ reasonable postulate and does not resolve the uncertainty (pg. 19).
The rewording of sec. 177D and sec. 177F ITAA 1936 to alter the threshold focus from identifying a tax benefit to identifying the purpose varies the order but not effect of the section (pg. 20). While the amendments improve the expression of the provisions, the amendments do not change the threshold focus, render applying past authorities difficult to the new syntax and fail the apparent policy purpose (pg. 19).
Tony also undertakes a comparative analysis of international general anti-avoidance provisions to support the relative integrity and effectiveness of the current Part IVA rules.