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The concept of control in Div 6C


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

Terrence 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, 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 05 November 2019
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Dr Dr. Julianne Jaques CTA
Dr Julianne Jaques QC, CTA, is a barrister at the Victorian Bar specialising in taxation law. She has particular expertise in disputes involving complex commercial transactions and has appeared in many significant cases including Bywater and Sharpcan in the High Court. Prior to joining the Bar, Julianne spent 10 years in private practice with a major law firm and a major accounting firm. She was also senior tax adviser to the Federal Assistant Treasurer during the introduction of GST and business tax reform. - Current at 12 March 2021
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