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Washington & Lee Law School
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  Australian Tax Review   (Australia)
  Volume 34, Number 4, December 2005
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  • obituary
        p.193                                                                                      +cite    

  • articles
  • FCT v Hart: An analysis of the impact of the High Court decision on the application of PtIVA
        Domenic Carbone and John Tretola
        p.196                                                                                      +cite        
        It has been claimed that the decision of the High Court in FCT v Hart has left the application of the general anti-avoidance provisions of Pt IVA in total confusion. This article sets out the High Court's interpretation and application of Pt IVA since it was first litigated in that court in 1994 through to its decision in Hart. The authors' analysis of the Hart decision shows that, far from the decision being unexpected and leaving the application of Pt IVA in total confusion, the decision is rather a logical, incremental development of propositions laid down in earlier High Court cases on Pt IVA. Further, the authors conclude that the Hart decision does not represent a significant broadening of the operation of Pt IVA
  • The application of the mutuality principle to timeshare companies
        Nathalie Love
        p.216                                                                                      +cite        
        The mutuality principle originates back to the 19th century, where the benevolent nature of certain activities undertaken by individuals solely for their own benefits was acknowledged by the courts in the United Kingdom. The principle is based on the proposition that individuals cannot derive income from themselves and that such income is not treated as being assessable for tax purposes. While the mutuality principle has a solid foundation under common law, there are currently no Australian legislative provisions that deal specifically with mutuality. The issue addressed in this article is not the validity of the principle itself, but its extrapolation over the years to new commercial products which were not necessarily envisaged when the principle was first established. More specifically, questions are raised as to the application of the mutuality principle to timeshare schemes operating under a corporate structure. It is concluded that such entities have no entitlement to the mutuality principle in order to minimise their tax liabilities
  • Recovery of overpaid GST and VAT and the "passing on" defence
        Monica Chowdry
        p.229                                                                                      +cite        
        This article explores the issues that arise in relation to recovery of overpaid GST and VAT in Australia and the UK.The focus is on the division between statutory and common law regimes for recovery of overpaid tax. In particular, the availability of a form of passing on defence to the tax authorities in GST and VAT cases that is not available to private individuals bringing claims under the common law of unjust enrichment.The article considers whether or not the operation of the defence is in line with the justification for its existence in tax law and, if not, where improvements to the legislation need to be made.

  • Book review
  • Global Challenges in Tax Administration, by Rodney Fisher and Michael Walpole
        p.247                                                                                      +cite