Published on 01 Sep 06
by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE
This paper argues that there is a need for greater clarity on the policy objectives of the non-commercial loss provisions and that a lack of focus on policy has led to unacceptable collateral damage to smaller taxpayers. The crux of the problem lies within the continued uncertainty surrounding what it means to be “carrying on a business”. The argument is made that although clear guidelines in this area would provide the best solution, this outcome is inherently difficult to achieve. The “second best” solution lies in ensuring that Division 35 correctly targets the policy objectives of the government. The paper takes issue with both substantive and procedural aspects of the Board of Taxations’ Post Implementation Review of Division 35. Similar legislation in four other countries is canvassed in order to assess whether Australia could benefit from their experiences.