Asia Pacific

Talking Tax – Issue 78

Case law

Change in capacity held to be a change in beneficial ownership

On 12 May 2017 in Rakmy Pty Ltd v Commissioner of State Revenue [2017] VSC 237, the Victorian Supreme Court held that a change in beneficial ownership of dutiable property had occurred where there was a change in the capacity in which the taxpayer held the land.

The taxpayer had initially held land as trustee for a unit trust. The unit holders of the unit trust then passed a special resolution, vesting the land in a superannuation fund, of which the taxpayer was trustee. The main issue in the case was whether there was a ‘change in beneficial ownership of dutiable property’ within the meaning of sub-sections 7(1)(b)(vi) and 7(4) of the Duties Act 2000 (Vic) (Act), despite the land being held by the same legal entity.

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Private companies face public conundrum under new crowdfunding rules

A sticking point from the Federal Government’s Corporations Amendment (Crowd-sourced Funding) Act 2017 , was that there was no scope for private (proprietary limited) companies to access crowdfunding. Government sought to address this in the latest Federal budget, but there could be a catch.

The Crowdfunding bill passed in March, and becomes law this September. Feedback suggested few start-ups would consider crowdfunding under the model due to private companies being unable to raise money from the public and access the new regime, and the compliance burden of trading as a public company.

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ABA responds: Big reforms for small business lending are on their way

On 28 March 2017 the Australian Bankers’ Association (ABA) released its response to Mr Phil Khoury’s independent review of the Code of Banking Practice (Code) issued on 20 February 2017 (Khoury Report). The Code applies to personal and small business bank customers and sets out the banking industry’s key commitments and obligations to customers on standards of practice, disclosure and principles of conduct for their banking services. Our update on the Khoury Report is available here.

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11-figure ABN adds up to 7-figure dollar loss as Supreme Court rules on defective PPSR registration

On 2 May 2017, the Supreme Court of New South Wales handed down its decision refusing an application to extend time to register a security interest in Production Printing (Aust) Pty Ltd (in liquidation) [2017] NSWSC 505.

The decision followed shortly after that of OneSteel Manufacturing Pty Ltd (administrators appointed) [2017] NSWSC 21 (OneSteel) in which it was held that registering a security interest on the Personal Property Security Register (PPSR) against a grantor’s Australian Business Number (ABN) rather than its Australian Company Number (ACN) affords no protection and will result in the security interest vesting in the grantor if it becomes insolvent.

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Sex discrimination claim sails on

A 16 year old female sailor, who was excluded from participating with her father in a ‘men’s 49er class’ sailing event at a world sailing regatta held in Melbourne in December 2014, has won the right to pursue a sex discrimination claim against Yachting Victoria.

The Federal Circuit Court recently dismissed an application by Yachting Victoria seeking to have the discrimination claim struck out. In its application to have the claim dismissed, Yachting Victoria argued that the sex discrimination claim was hopeless, bound to fail or had no reasonable prospect of success on the basis that (among other things):

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Time to get your affairs in order now you’ve stopped streaming S Town!

Have you been listening to the latest podcast sensation created by the producers of Serial and This American Life?

Has the intriguing estate planning (or lack thereof) of John B. McLemore got you thinking about ensuring that you have your own house in order?

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Talking Tax – Issue 77

Case law

The Tribunal to confirm an assessment when a taxpayer fails to appear

In Melbourne Home Insulation Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2017] VCAT 654, the Victorian Civil and Administrative Tribunal (VCAT) confirmed the payroll tax reassessments for the relevant tax years issued by the Commissioner of State Revenue (Commissioner) to Melbourne Home Insulation Pty Ltd (Applicant) by reason of the Applicant’s non-appearance at the hearing.

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Taking stock of stocktakes: insolvency practitioners’ entitlement to incentive fees

Bicheno Investments Pty Ltd v David John Winterbottom [2017] NSWSC 536 has confirmed that the completion of a stocktake does not necessarily require a full physical stocktake. Rather insolvency practitioners may satisfactorily complete a stocktake by reviewing a business’ records, provided they are satisfied that those records are accurate and complete. On this basis, Justice McDougall of the Supreme Court of New South Wales confirmed that the Receivers were entitled to retain a $2 million incentive fee. The decision also serves as a reminder of the impact the definition of a ‘stock take’ has in retention of title matters.

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Beware the consequences of not being flexible

The Fair Work Act 2009 (Cth) (FW Act) provides employees with a right to apply for flexible working arrangements if they meet certain criteria. Provided that an employer complies with the process for dealing with such requests, there is no direct mechanism under the FW Act for an employee to challenge their employer’s decision. But does that mean the reasons for a refusal are immune from scrutiny? A recent decision of the Fair Work Commission (FWC) provides a reminder that compliance with the procedural requirements under section 65 isn’t always enough.

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The end of Calderbank offers in the ACT?

In Australia, the ‘English rule’ applies to the costs of litigation: the loser pays the winner’s costs. Historically, offers of settlement known as Calderbank offers have the potential to partially reverse this rule. A party who unreasonably rejects a Calderbank offer and obtains a lesser amount after trial faces the risk of having to pay the other party’s costs from the date the unaccepted offer expired. The offers have therefore been generally used in all types of matters to discourage litigation and encourage early settlement.

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