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Justice Hill Memorial Lecture: Income and capital distinction paper


This paper was presented at both the 23 National Convention and the Capital versus revenue: the sun never sets event held in Victoria on 16 April 2008.

The distinction between income and capital has been the pivotal issue on which most tax issues turn since the Commonwealth imposed income tax. When capital gains tax was introduced it was anticipated that the distinction between income and capital would become less significant. To the contrary, the distinction is one gaining more and more attention. In this paper Justice Pagone focuses on recent developments in the income/capital debate including:

  • the reasons why the distinction remains so central to the Australian tax system
  • the impact of more recent judicial decisions
  • if the judgement has been given, the first decision relating to the debt/equity provisions.

Author profile:

Justice Gaetano Pagone
Justice Tony Pagone was appointed to the Federal Court of Australia in June 2013. Prior to this appointment, he was a judge of the trial division of the Supreme Court of Victoria and had been the judge in charge of the Commercial Court of that court. Justice Pagone graduated from Monash University in 1979 with a Bachelor of Laws and from Cambridge University with a Master of Laws in 1983. In 2014, he was awarded an LLD from the University of Melbourne for his research and published work on avoidance provisions. He was admitted as a legal practitioner in 1980, signed the roll of counsel in 1985, and was appointed Queen™fs Counsel for Victoria in 1996. During his career at the Bar, Justice Pagone practised widely in taxation law, commercial law, administrative law, constitution law, public and human rights law. He was also Special Counsel to the ATO between 2002 and 2004. He is a professorial fellow of the Melbourne Law School and lectures in several postgraduate courses at the Melbourne Law School and from time to time in the Law Faculty at Monash University. Justice Pagone is a vice-president of the International Association of Judges and a director of the Board of the International Association of Tax Judges. Current at 19 October 2016 Click here to expand/collapse more articles by Tony PAGONE QC.

This was presented at 23rd National Convention.

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Individual sessions

National harmonisation of payroll tax – Big change or minimal change?

Author(s):  David KL RAPHAEL

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Justice Hill Memorial Lecture: Income and capital distinction

Author(s):  Tony PAGONE QC

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A plethora of property issues to ponder

Author(s):  Lachlan R WOLFERS

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