Birchstone Brief for the week ended 24 March 2023

ATO Updates

The ATO has issued an addendum to GSTR 2002/2, which deals with the GST treatment of financial supplies and related supplies and acquisitions, to reflect recent changes in the GST law and generally modernise the ruling. 

Draft update to GSTR 2014/2

The ATO has released a draft update proposing to make miscellaneous changes to GSTR 2014/2, which deals with the GST treatment of ATM service fees and credit and debit card surcharges. 

Class rulings issued

The ATO has issued:

• CR 2023/13 – Charter Hall Direct Industrial Fund No.2 – Scrip for scrip roll-over; and
• CR 2023/14 – Logbook Me Pty Ltd – LogbookMe In-Car Logbook Solution for calculating car parking benefits. 

Cases

Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48 – Full Court finds truck drivers not employees under extended definition

The Full Federal Court has ruled that individual truck drivers who provided delivery services to a company over an extended period via their respective partnerships with their wives were not ’employees’ of that company within the extended definition of that term for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth). In determining the High Court’s remittal of the respondent’s cross-appeal in ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (in which the High Court determined that the truck drivers were independent contractors and not employees within the ordinary meaning of that term), the Full Federal Court held that section 12(3) is only capable of applying where an identified natural person is a party to a contract in their individual capacity. As the truck drivers were parties to the relevant contracts in their capacity as partners of their respective partnerships, the provision could not apply. Further, the Court was satisfied that the relevant contracts were not wholly or principally “for” the labour of the truck drivers as what ZG received under them was ‘a single integrated benefit being a delivery service to be carried out by the partnership, using the partnership’s resources at the partnership’s risk and fully insured at the partnership expense.’

The decision is undeniably noteworthy, serving to provide some much needed certainty on the potential scope of section 12(3). It is definitely worth understanding the Full Court’s reasoning in detail, and as such we will discuss the case further in our upcoming Employee / Contractor webinar. More details regarding that webinar will follow in next week’s Birchstone Brief. 

Sunlite Australia Pty Ltd v FCT [2023] FCAFC 43 – R&D expenditure incurred by corporate trustee not deductible

The Full Federal Court has confirmed that R&D expenditure incurred by a company in its capacity as trustee of a trust was not deductible under the R&D provisions as it was not incurred by the company in its own right. In so doing, the Court dismissed the taxpayer’s appeal against the AAT’s decision in [2021] AATA 4070. 

Legislation

Bill to refine and improve the tax system introduced

The Treasury Laws Amendment (Refining and Improving Our Tax System) Bill 2023 (Cth) was introduced into the House of Representatives on 22 March. If enacted into law, the Bill will:

• amend the International Tax Agreements Act 1953 (Cth) to give the force of law to the double tax agreement between Australia and Iceland (which was signed on 12 October 2022); 
• amend the ITAA 1997 to extend the income tax treatment of the Australian Government’s Future Fund Board to its 100% owned Australian subsidiaries; 
• implement reforms regarding the administration of the deductible gift recipient registers (covered in the Birchstone Brief for the week ended 20 January 2023); 
• allow eligible business entities to align their reporting for excise and customs duty with the return period for other indirect taxes; and
• provide that the small-scale repackaging of beer will not be taken to be the manufacture of beer for excise purposes if it meets certain requirements.