Current Law Journal Content
Washington & Lee Law School
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  Australian Tax Review   (Australia)
  Volume 39, Number 4, November 2010
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  • EDITORIAL - The politics of tax in 2010
        p.177                                                                                      +cite    

  • The perils of complexity: Why more law is bad law
        The Hon Justice Nye Perram
        p.179                                                                                      +cite        
        The writer discusses two problems concerning modern Australian legislation. The first is the role of intention. The second is the overlength and complexity of modern statute law.
  • Cross-border issues arising from employee share ownership plans
        Ann O'Connell
        p.187                                                                                      +cite        
        In 2009 the federal government introduced Div 83A into the Income Tax Assessment Act 1997 (Cth). The Division deals with taxation of employee shares and rights. The application of those rules and related provisions (such as the capital gains tax provisions) to cross-border employees is particularly complex. The complexity arises because the rules lack clarity, the transitional rules do not cover all possibilities and, in addition, the nature of employee share schemes means that they may be subject to tax at different times in more than one jurisdiction. This article starts with the premise that employee share schemes are different to other forms of remuneration. It considers how the rules might be applied and how the problem of double taxation might be dealt with.
  • Tolerating deferral: Australia's proposed foreign accumulation fund rules
        Mark Brabazon
        p.205                                                                                      +cite        
        This article reviews the rise and fall of the foreign investment fund (FIF) rules and their proposed replacement with foreign accumulation fund (FAF) rules. The government has accepted a recommendation of the Board of Taxation to enact a narrow anti-abuse rule and, for that purpose, has released a Draft Bill and Draft EM for consultation. The Board recommended a rule based on concepts of non-distribution, "low-risk" or "interest-like" investment, tax deferral benefit and dominant tax deferral purpose. It is argued that the Board has failed to assess the revenue impact of its proposals and that its design of the proposed rule is confused and contradictory. These deficiencies infect the Draft Bill and Draft EM. The real risk of tax deferral by international portfolio investment still needs to be identified, including the significance, if any, of investment risk and the debt/equity distinction.