Act of the Parliament of Australia
The "Income Tax Assessment Act 1936" (Cth) is an Act of the Parliament of Australia. It is one of the main statutes under which income tax is calculated. The Act is gradually being rewritten into the Income Tax Assessment Act 1997, and new matters are generally now added to the 1997 Act.
The reason for rewriting the act is that amendments over the years have made it thousands of pages long, and very complex. Amendments have also created subsection upon subsection.
The Act.
Section 260.
Section 260 was the initial general anti-avoidance provision in the act, present from its inception in 1936 and operative until 27 May 1981. The section held any contract
"to be void as against the Commissioner."
"Void against the commissioner" meant such a contract would be ignored for taxation determination, but was still enforcible by the parties against each other (the same as any other contract).
The section was present in essentially the same form in the Commonwealth Income Tax Assessment Act 1915 (and it seems in a prior act from 1895). The history of the section is principally the history of the interpretation of its wording by the courts. The wording was notably broad; as early as 1921, Chief Justice Knox remarked on that (referring to the 1915 act), saying "The section, if construed literally, would extend to every transaction whether voluntary or for value which had the effect of reducing the income of any taxpayer."
In consequence, the courts, of necessity, "read down" the section so it would not apply to every transaction, that obviously not being the legislature's intention.
In "Newton v FCT" (1958), on appeal to the Privy Council, a kind of "predication" test was described. Lord Denning in his judgement said: you must be able to predicate – by looking at the overt acts by which it was implemented – that it was implemented in that particular way so as to avoid tax. If you cannot so predicate, but have to acknowledge that the transactions are capable of explanation by reference to ordinary business or family dealing ... then the arrangement does not come within the section.
A somewhat different stream of interpretation was established in "Keighery v FCT" (1957) where a taxpayer who made a choice between alternatives explicitly offered by the legislation (in that case a public versus private company) did not come under section 260. This was called the "choice principle" and it spawned "Mullens v FCT" (1976) which extended that to allow taxpayers to deliberately put themselves into circumstances described by the act (even if by unusual transactions) without coming under section 260.
The "Mullens" case, and the subsequent "Slutzkin" and "Cridland" (1977) decided from it, were in a sense the demise of section 260. To the extent those schemes were regarded, in the mood of the time, as contrivances or outright avoidance, section 260 was failing in its apparent task. But the question of "avoidance" as opposed to taxpayers taking up concessions offered by the statute is not an easy one. Earlier, in the "Newton" case (in the High Court in 1957), Justice Kitto had given his now often quoted warning about section 260: "Section 260 is a difficult provision, inherited from earlier legislation, and long overdue for reform by someone who will take the trouble to analyse his ideas and define his intentions with precision before putting pen to paper."
That invitation for analysis and reform was not taken up until, it seems, court decisions started going in favour of the taxpayer, at which point the issues discussed in the "Newton" case were indeed considered in constructing the new Part IVA, replacing section 260 as of 27 May 1981.
References.
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