Published on 01 May 12
by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE
When approaching matters involving the general anti-avoidance provisions of Pt IVA of the Income Tax Assessment Act 1936, one of the key statutory questions that must be answered is whether the taxpayer has obtained a tax benefit in connection with a scheme. This involves a determination as to whether the supposed benefit would or might reasonably be expected to have accrued if the scheme had not been entered into. Over the past four years, the requirement of the “tax benefit” has received extensive judicial clarification. In examining circumstances of what “would” or “might” happen, the courts have had to delve into the realm of the hypothetical and rely on a prediction as to the outcome of certain events.
This article examines how the courts have carried out their function of resolving this key statutory question, and the continuing uncertainty in outcomes that has resulted.