Birchstone Brief for the week ended 21 January 2022

ATO Update


The ATO has issued the following rulings:

  • CR 2022/1 – Rhipe Ltd – Scheme of arrangement and special dividend; and
  • CR 2022/2 – Cuscal Ltd – Equal access off-market share buy-back and selective off-market share buy-back.

Other News

Draft determinationClinical trials eligible activities for R&D Incentive

The Department of Industry, Science, Energy and Resources has released a Draft Determination which sets out that Phase 0-III clinical trials for unapproved therapeutic goods are core R&D activities for the purposes of the R&D Tax Incentive.


Trustee for Virdis Family Trust t/a Rickard Heating Pty Ltd v FCT [2022] AATA 3 – Subcontractor an employee

The AAT has affirmed a decision of the Commissioner of Taxation and held that a plumber that was engaged as a casual subcontractor was an employee under section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth).

The relevant facts were as follows:

  • the taxpayer engaged an individual to perform plumbing work as a casual subcontractor;
  • the plumber was paid a set hourly rate, paid his own superannuation and was to follow ‘all reasonable and lawful requests given to you by your employer’; and
  • the plumber did not delegate his work and was provided by the employer with the necessary materials.

After an audit, the Commissioner issued SGC assessments to the taxpayer on the basis that there was unpaid superannuation contributions for the plumber.

The AAT affirmed the decision of the Commissioner on the basis that there was a contract between the plumber and the taxpayer that was wholly or principally for his labour.

JobKeeper cases

The following JobKeeper decisions were handed down:

  • DGSC v FCT [2021] AATA 4816 – Taxpayer was not entitled to registration under the JobKeeper scheme as a sole trader business participant as she had already given her long-term casual employer a JobKeeper nomination notice.
  • RWPY v FCT [2021] AATA 4921 – Taxpayer who worked part-time as a promotional make-up artist was ineligible for JobKeeper payments as a business participant on the basis that they were not carrying on a business.
  • FFYS v FCT [2021] AATA 4844 – Taxpayer who rented out rooms via AirBnB was not carrying on a business and therefore ineligible to receive JobKeeper payments as a business participant.


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