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The significance of the land/chattels distinction in an infrastructure context


The distinction between land and chattels can be significant to investors in infrastructure, both for the purpose of determining whether Div 6C of the Income Tax Assessment Act 1936 applies and whether assets are taxable Australian property. This article examines the significance of the distinction between land and chattels in three different statutory contexts: Div 6C, Div 855 of the Income Tax Assessment Act 1997, and stamp duty. The author outlines the inconsistencies between the definitions used in Div 6C and Div 855, and highlights the potential conflict between avoiding the application of Div 6C while also remaining outside the taxable Australian property regime.

Author profile

Michael Flynn QC CTA-Life
Photo of author, Michael FLYNN Michael is a Barrister at Owen Dixon Chambers West, specialising in taxation and was National President of The Tax Institute in 2014. He is the author, with Miranda Steward, of Death and Taxes, and with James Kessler, QC, of Drafting Trusts and Will Trusts in Australia, the second edition of which was recently published. Michael has appeared before the Federal Court and the High Court in many cases on behalf of both taxpayers and the Commissioner. Michael has been a member of various committees of The Tax Institute for over 20 years, including Victorian State Council (he is a past State Chair) and National Council. He lectures in the postgraduate program at Melbourne University and is President of the Tax Bar Association. - Current at 12 July 2018
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