Income Tax Assessment Act 1997, 4-15, 293, 293-15, 293-20, 995-1

Blank v FCT (2015) FCAFC 154

Re Tong and FCT [2007] AATA 1234; (2007) 66 ATR 412

AAT Case 4188 [1988] AATA 73; (1988) 19 ATR 3336

1. An oral decision was delivered in this matter on 1 September 2016.
2. Following a request from one of the parties, written reasons are now provided.
3. This case concerns the application of Division 293 of the Income Tax Assessment Act 1997 which I will now refer to as "the Act" to the particular circumstances of the applicant in relation to the 2013/2014 income year. In that year the applicant received a payment amounting to $342,114 being a lump sum payment in arrears from a previous employer. This amount was made up of four separate amounts as follows:

1. Under section 293-15 the applicant is liable to pay Division 293 tax if the applicant has taxable contributions for the income year 2013/14.
2. Under section 293-20 the applicant has taxable contributions for that year if the sum of two things, namely:
   • the applicant's income for surcharge purposes for 2013/14 (disregarding reportable superannuation contributions); and
   • the applicant's low tax contributions for the corresponding financial year exceed $300,000.
3. The first part of this cumulative sum, namely the income for surcharge purposes for a person and for an income year is defined in section 995-1 of the Act. It is defined to mean the sum of a number of different items the most significant item being the person's taxable income for the income year. Clearly in this case the reference to the person's taxable income for the income year is a reference to the taxable income for the applicant's 2013/14 income year.
4. Taxable income is itself defined in section 995-1 of the Act. It is then further defined by reference to section 4-15 which relevantly tells us that the applicant's taxable income for the 2013/14 income year is to be calculated by adding up all the applicant's assessable income for that income year and deducting all the applicant's deductions for that income year with the result being the applicant's taxable income.
5. The income in question here is in its entirety employment income derived by the applicant in relation to services which the applicant performed over four different income years.
6. The accepted tax treatment of income derived from employment is that employment income is derived when the income is actually received irrespective of the period for which the payment occurs: Blank v FCT (2015) FCAFC 154 and Re Tong and FCT [2007] AATA 1234; (2007) 66 ATR 412.
7. Arrears of salary for example, paid after the resolution of the dispute are assessable income in the year of receipt thus salary wages or other employment remuneration are assessable on receipt even though they relate to a past or a future income year: Case U152 (1987) 87 ATC 894 and AAT Case 4188 [1988] AATA 73; (1988) 19 ATR 3336.
8. The applicant in this case sought to argue that the relevant definitions could be used to provide a different outcome whereby each of the four amounts in question could and should, on a reasonable reading of the provisions, be allocated to each of the years in which the relevant services had been provided.
9. Regrettably from the applicant's point of view I can see no warrant under the legislation for reaching such a different construction of the relevant statutory provisions. The provisions themselves speak clearly and in my view unambiguously in such a fashion as to bring to account only in the year 2013/14 the whole of the income that is received in that year even though the amounts in question may - and in this case do - relate to different income years in the sense that they are for services which were provided in other years.
10. The applicant also sought to argue that the applicant was not a high income earner. In doing so the applicant appears to be taking a somewhat layman's approach to the concept of "high income earner' and in that sense I have some sympathy for the position the applicant puts. However, whilst the term high income earner is used, it is used in a very technical sense to refer to any person who derives income in excess of $300,000 in a particular income year. It is not used in a general layman's sense of the phrase.
11. That is enough to dispose of this case. The whole of the income received in 2013/14 is taxable in that year because it is received in that year even though the amounts relate to services performed in previous years. That is a clear outcome and I would argue the clear objective of the statutory provisions that I have traversed above.
12. Though not strictly relevant and not relied upon by the applicant, I do note in addition that there is no express statutory discretion available under division 293 of the kind which is present in division 291 and division 292, namely sections 291-465 and section 292-465 respectively.
13. The applicant did not argue otherwise but did seek to argue that there is an implicit discretion within section 293-20 to read that provision differently to the way in which I have interpreted it. Clearly I do not agree.
14. The decision under review is affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

..................[sgd]......................................................

Review and Dispute Resolution, Australian Taxation Office