ATO Interpretative Decision
ATO ID 2004/149 (Withdrawn)
Assessable income: receipt of government grant by a school bus operator
FOI status: may be released
||This ATO ID is withdrawn. The income tax consequences of receiving a government grant are now discussed in Taxation Ruling TR 2006/3 Income tax: government payments to industry to assist entities (including individuals) to continue, commence or cease business .
||This document has changed over time. View its history.
Status of this decision: Decision withdrawn 17 November 2017.
|CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.|
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
When is a state government grant paid to a school bus operator, returning income on an accruals basis, included in assessable income under section 15-10 of the Income Tax Assessment Act 1997 (ITAA 1997)?
The grant will be included in the assessable income under section 15-10 of the ITAA 1997 in the year the payment is received by the school bus operator.
The taxpayer carries on a business as a school bus operator.
They account for their income for tax purposes on an accruals basis.
A state government department is providing funding to school bus operators to upgrade their school buses. The funding has been made available due to community concern about the age and safety of some school buses.
Bus operators are required to use the funding to purchase more modern buses for school bus routes.
The taxpayer entered into a Deed of Agreement with the state government to accept financial assistance towards the purchase price of a new bus.
The Deed of Agreement provides that if a school bus is sold or withdrawn from operation on school bus routes within five years of the payment of the grant, then the operator must refund the state government part of the lump sum.
Reasons for Decision
Section 15-10 of the ITAA 1997 includes in assessable income bounties and subsidies that are received in relation to carrying on a business and that are otherwise not assessable as ordinary income.
The payment of the state government grant to the school bus operator is a subsidy that is received in relation to the taxpayer's business and is not ordinary income.
Section 15-10 of the ITAA 1997 includes in assessable income a bounty or subsidy that 'you receive in relation to carrying on a business'.
The term 'receive' is not defined in the ITAA 1997. However, in discussing paragraph 26(g), the equivalent provision in the Income Tax Assessment Act 1936 (ITAA 1936), Taxation Ruling TR 97/1 states that the courts have interpreted 'received' in paragraph 26(g) as the same as 'derived' in subsection 25(1) of the ITAA 1936.
The question of when income is derived has been considered in a series of decisions of the Courts and it is often simply a question of whether a 'cash' or accruals basis should be used. Gibbs J said in Brent v. Federal Commissioner of Taxation (1971) 125 CLR 418; (1971) 71 ATC 4195; (1971) 2 ATR 563:
It has become well established that unless the Act makes some specific provision on the point the amount of income derived is to be determined by the application of ordinary business and commercial principles and that the method of accounting to be adopted is that which 'is calculated to give a substantially correct reflex of the taxpayer's true income'.
Where a taxpayer is assessable on an accruals basis, the courts have considered that income is derived when a recoverable debt has been created and the taxpayer is not obliged to take any further steps before becoming entitled to payment ( Henderson v. Federal Commissioner of Taxation (1970) 119 CLR 612(1970) 70 ATC 4016; (1970) 1 ATR 596). However, there may be an exception where payments are received in advance of goods or services being provided.
In Arthur Murray (NSW) Pty Ltd v. Federal Commissioner of Taxation (1965) 114 CLR 314; (1965) 14 ATD 98 the taxpayer received amounts in advance for lessons to be given over future periods. Some of the lessons had not been given in the year in which the fees were paid. The High Court held that the fees could not be regarded at the time of receipt as assessable income of the taxpayer but became such assessable income only when they were earned by the provision of lessons. Until that time, the amounts had not 'come home' to the taxpayer. In their joint judgement, Barwick CJ, Kitto and Taylor JJ said that the ultimate enquiry was whether what had taken place was enough to satisfy the general understanding among practical business people of what constitutes a derivation of income. In discussing the possibility of having to make a refund the court said:
But those circumstances nevertheless make it surely necessary, as a matter of good business sense, that the recipient should treat each amount of fees received but not yet earned as subject to the contingency that the whole or some part of it may have in effect to be paid back, even if only as damages, should the agreed quid pro quo not be rendered in due course. The possibility of having to make sure such a payment back (we speak of course in practical terms) is an inherent characteristic of the receipt itself. In our opinion it would be out of accord with the realities of the situation to hold, while the possibility remains, that the amount received has the quality of income derived by the company.
In terms of the grant received by the school operators for the purchase of a bus, the amount has 'come home' when it is expended for the intended purpose. At that point the bus operator has done everything necessary to earn the income. At that point it makes sound business and commercial sense to treat the income as derived.
Whilst the Deed of Agreement provides that if the bus is withdrawn from school bus routes within 5 years a portion of the grant must be refunded, this is insufficient to defer derivation of the income to a future point in time.
Date of decision: 2 February 2004
|Year of income:||Year ended 30 June 20034|
Income Tax Assessment Act 1936
Income Tax Assessment Act 1997
Arthur Murray (NSW) Pty Ltd v. Federal Commissioner of Taxation
Taxation (1965) 114 CLR 314
(1965) 14 ATD 98
Brent v. Federal Commissioner of Taxation
(1971) 125 CLR 418
(1971) 71 ATC 4195
(1971) 2 ATR 563
Henderson v. Federal Commissioner of Taxation
(1970) 119 CLR 612
(1970) 70 ATC 4016
(1970) 1 ATR 596
Related Public Rulings (including Determinations)
Taxation Ruling TR 97/1
Related ATO Interpretative Decisions
ATO ID 2003/565
Bounties & subsidies
Carrying on a business
Government grants income
Grants of financial assistance & funding
Siebel/TDMS reference number: 3875133
Business line: Small Business/Individual Taxpayers
Date of publication: 13 February 2004
|ATO ID 2004/149 (Withdrawn) history