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Draft Taxation Determination TD 2022/D3: Use of an individual’s fame

Author: The Tax Institute

Published Date: 10 Nov 2022


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The Tax Institute welcomes the opportunity to make a submission to the Australian Taxation Office (ATO) in relation to Draft Taxation Determination TD 2022/D3: Income tax: use of an individual’s fame by related entities (draft TD).

In the development of this submission, we have closely consulted with our National Small and Medium Enterprise Technical Committee to prepare a considered response that represents the views of the broader membership of The Tax Institute.

The Tax Institute broadly supports the release of guidance on this issue. The taxation of arrangements that involve an individual’s ‘fame’ is complex and likely to result in significant confusion for taxpayers and tax practitioners. The confusion has likely been exacerbated since the withdrawal of Draft Practical Compliance Guideline PCG 2017/D11 Tax treatment of payments for use and exploitation of a professional sportsperson’s ‘public fame’ or ‘image’ and the announced but unenacted measure (ABUM) concerning an individual’s fame in the Federal Budget 2018–19. Until the ABUM is legislated or the Government expressly announces that it will not proceed with the measure, the difficulties for taxpayers in applying the legislation are likely to continue.

The draft TD would benefit from further guidance on the specifics of the Commissioner’s view. This includes a more detailed explanation regarding the Commissioner’s reasoning for the ATO’s view and whether a different tax outcome arises for unrelated parties (and if so, why). We note that there is a lack of legislative and judicial guidance on the taxation implications for the use of an individual’s fame. The inclusion in the draft TD of any alternative views, and why the Commissioner does not agree with them, will better assist taxpayers and tax practitioners understand the potential consequences of their arrangements. 

We also consider that further clarification is required on the scope of the Commissioner’s view, with examples of arrangements involving intellectual property rights that are intended to fall outside the draft TD. The example in the draft TD is an area where additional clarity on this point would be useful. The example likely contains an arrangement involving a known intellectual property right, being the copyright for the photo provided, despite the Commissioner’s view not intending to cover these types of arrangements.


  • Published By:The Tax Institute
  • Published On:10 Nov 2022

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The Tax Institute
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