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The character of the advantage sought

Publication date: 01 Sep 97 | Source: AUSTRALIAN TAX REVIEW

Issue: Vol 26 No 3

Pages: pp 131-150

Abstract:
Decisions on the distinction between capital and income are often difficult to reconcile with each other. To no small extent this is because the courts in explaining the reasons for their decisions employ the same verbal formulae but apply them to quite different analyses of the issues. A striking example of this is the reliance, in drawing a distinction between capital and revenue outgoings, on the "character of the advantage sought" by the outgoing as a means of characterising the outgoing. The problem which the use of this phrase disguises is the outcome. Often there is a choice of advantages, concurrently sought and achieved by the taxpayer and each of equal significance. Judicial nomination of only one of the alternative advantages as "the" advantage sought, without acknowledgment of the others and an open weighing of their relative importance, causes problems on subsequent resort to the decision as a precedent.Abstract from article.

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Author profile

Anthony Slater
Tony Slater QC, FTIA, has represented both taxpayers and the Commissioner in GST disputes in appellate courts, from the time the tax was introduced. Many of the cases in which he has appeared have concerned the scope of the “supply” on which GST is levied. He is a longstanding member of the Institute and a frequent speaker at its conferences. - Current at 21 October 2016
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