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The concept of control in Div 6C

Published on 01 Apr 17 by "THE TAX SPECIALIST" JOURNAL ARTICLE

The ATO released two controversial documents affecting infrastructure investments early this year. The first document was TA 2017/1, which highlights the ATO’s concern with stapled structures that attempt to re-characterise trading income into passive income to attract concessional tax treatment. The second document was the draft Privatisation and infrastructure – Australian federal tax framework, which updates and expands on documents previously released by the ATO. Both documents have caused a degree of disquiet to investors and advisers who are grappling with what the ATO’s stated positions mean to their investments. The focus of this article is on the concept of “control” for the purposes of s 102N(1)(b) in Div 6C. The authors hope that an appreciation of the issues currently arising might inform the process of developing a framework that will ensure that appropriate levels of taxation are paid while having a minimal effect on business confidence and efficiency.

Author profiles

Terry Murphy QC, CTA
Terry has focused on advising and appearing for taxpayer and revenue authorities in the Federal Court and High Court, and in alternative dispute resolution for over 30 years. He was appointed to be the Special Counsel to the Australian Taxation Office from 2008 to 2010 and was a Past President of the Tax Bar Association. Terry is a member of Taxation Subcommittee of the Law Council, Chair of the Tax Group Advisory Board, and a Senior Fellow of the University of Melbourne Law School. - Current at 30 August 2021
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Dr Dr. Julianne Jaques CTA
Julianne is a barrister specialising in taxation law and regularly appears in taxation matters in the AAT and Federal courts, including more recently in the cases of Sharpcan, Victoria Power Networks and Sole Luna. Prior to coming to the Bar, Julianne spent 10 years in private practice with a major accounting firm and a major law firm, and was senior taxation adviser to the Federal Assistant Treasurer. She is a Chartered Tax Adviser and a Chartered Accountant, and her doctoral thesis at the University of Melbourne was on the taxation of corporates. Julianne is a member of the Tax Practitioners Board and the Board of Taxation. In 2020, Julianne was awarded Chartered Tax Adviser of the Year by The Tax Institute. - Current at 16 August 2021
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