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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 James Kessler, QC, of Drafting Trusts and Will Trusts in Australia (2nd edition, 2017). Michael has appeared in the Administrative Appeals Tribunal, the Federal Court and the High Court in taxation cases. Michael has been a member of various committees of The Tax Institute for over 20 years. - Current at 02 December 2019
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