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Referability not referenced: divergent cases on timing of deductions


The meaning of "incurred" is important in ascertaining the timing of s 8-1 deductions. Unfortunately, some of the cases defining incurred are difficult to reconcile. Case law also establishes that a loss or outgoing is not deductible under s 8-1 until a year to which it is "properly referable", even if it was incurred earlier. This article submits that the cases defining incurred could be reconciled by reinterpreting anomalous cases as implicit applications of the proper referability doctrine.

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Tim Neilson CTA-Life
Photo of author, Tim NEILSON Prior to joining White & Case, Tim was a Special Counsel at Greenwoods & Herbert Smith Freehills Pty Limited in Melbourne. Tim is a legal practitioner who practices primarily in the area of income tax and capital gains tax, generally for “large business and international” type clients, mainly in financing, major projects and M&A. He is a former State Chairman and current National Councillor of The Tax Institute, and is immediate past President of the Institute. He has published frequently in professional journals and spoken at professional organisation conferences and seminars and guest lectures in the University of Melbourne’s Masters of Laws program. - Current at 06 November 2020
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