Birchstone Brief for the week ended 22 October 2021


Recognition as Leading Law Firm

Birchstone Tax Law has been included in the 2021 Doyle’s Guide List of Leading Western Australian Tax Law Firms. Daniel Taborsky, Managing Director, has also been included in the list of Leading Western Australian Tax Lawyers.

These lists detail firms and lawyers who have been identified by clients and peers for their expertise in the area.

ATO Update

ATO Guidance: Base rate entities

The ATO has issued an addendum to LCR 2019/5 to clarify that a corporate tax entity’s aggregated turnover (for the purposes of determining whether it is a base rate entity) is calculated for the income year in which the base rate entity status is being determined, and is worked out as at the end of that year.

Decision Impact Statement: WYPF

The ATO has issued a Decision Impact Statement on the decision in WYPF v Commissioner of Taxation [2021] AATA 3050 (first covered in the Birchstone Brief for the week ended 3 September 2021). In that case, the AAT has held that the value of building works performed by a taxpayer as a condition of acquiring a long-term lease did not constitute consideration for the purposes of the margin scheme. In the Decision Impact Statement, the Commissioner expresses the view that the decision in relation to building works is consistent with ATO views as documented in GSTR 2015/2 and GSTD 2021/1.

Class Rulings

The ATO has issued Class Ruling CR 2021/70 – Milton Corporation Ltd – Scheme of arrangement, final dividend and special dividend.


Global Citizen Ltd v Commissioner of the ACNC [2021] AATA 3313 – PBI status

The AAT has held that a not-for-profit entity was entitled to public benevolent institution (PBI) status.

The applicant was not-for-profit entity with a purpose (as adopted by a new constitution in 2018) to end extreme poverty by 2030.  The applicant’s activities involved using high-profile individuals and artists to source financial commitments from large corporations and philanthropists. When the applicant sought registration as a PBI, the Commissioner of the ACNC refused on the following grounds:

  • the applicant had independent purposes (education/advocacy) that prevented it from being a PBI; and
  • the applicant did not provide relief directly.

The AAT set the decision of the Commissioner of the ACNC to refuse the applicant’s registration as a PBI aside. The AAT held that any education and advocacy undertaken by the applicant were incidental to the main purpose of the relief of poverty. Further, the AAT held that the applicant could provide relief indirectly and there was no requirement to prove the link between the applicant’s activities and the relief of poverty.


The Commissioner has appealed to the Federal Court from the decision in STNK v Commissioner of Taxation [2021] AATA 339 (first covered in the Birchstone Brief for the week ended 1 October 2021). In that case, the AAT has found a taxpayer did not make GST-free supplies of scrap gold to refiners but did make GST-free supplies when making export sales of scrap gold bars.


New Bill Introduced: Offshore petroleum production levy

Bill has been introduced into Parliament which introduces a temporary levy on offshore petroleum production.

New Bill Introduced (NSW): Payroll tax waivers

Bill has been introduced into the Parliament of New South Wales which amends the Payroll Tax Act 2007 (NSW) to create a 50% payroll tax waiver for employers that:

  • qualified for the 2021 COVID-19 JobSaver Payment scheme or the 2021 COVID-19 Business Grant scheme administered by Service NSW; or
  • met the 30% or greater decline in turnover test for either of these schemes.


Birchstone Brief

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