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ATO Interpretative Decision

ATO ID 2004/426 (Withdrawn)

Income Tax
Assessable income: derivation of membership fees for website access

Attention This ATO ID is withdrawn. The views expressed in the ATO ID are current and offer a straight application of the law in relation to assessable income. This information is contained in What to include in your assessable income (QC 44460).
Attention This document has changed over time. View its history.
FOI status: may be released
Status of this decision: Decision withdrawn 28 July 2017.

CautionCAUTION: 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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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.


Issue

Is the full amount of membership fees paid to the taxpayer, for unlimited access to its website for as long as the website is in operation, included in the taxpayer's assessable income under section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) in the income year in which the fees are received?

Decision

Yes. The full amount of membership fees paid to the taxpayer, for unlimited access to its website for as long as the website is in operation, is included in the taxpayer's assessable income under section 6-5 of the ITAA 1997 in the income year in which the fees are received.

Facts

The taxpayer company offers members unlimited access to its website for as long as the website is in operation.

The taxpayer is not under any contractual obligation to operate the website for a specified period.

The taxpayer receives the one off membership fees from the members when the member lodges their application for unlimited access to the taxpayer's website for the lifetime of the website.

The members are entitled to cancel their membership at any time and receive a refund from the taxpayer.

Reasons for Decision

Section 6-5 of the ITAA 1997 requires an amount of ordinary income to be brought to account as assessable income when it has been derived.

As general rule, it is accepted that the question of when income is derived by a taxpayer, as noted by Gibb J in Brent v. FC of T (1971) 125 CLR 418; 2 ATR 563; 71 ATC 4195:

   ... 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'.

This rule has emerged from Dixon J's observation, in Commissioner of Taxation (South Australia) v. Executor Trustee and Agency Co of South Australia Ltd (1938) 63 CLR 108; (1938) 5 ATD 98 that:

   ...the inquiry should be whether in the circumstances of the case it is calculated to give a substantially correct reflex of the taxpayer's true income. Speaking generally, in the assessment of income the object is to discover what gains have during the period of account come home to the taxpayer in a realised or immediately realisable form.

This principle was endorsed in, amongst other cases, Arthur Murray (NSW) Pty Ltd v. Federal Commissioner of Taxation (1965) 114 CLR 314; 14 ATD 98; (1965) 9 AITR 673 ( Arthur Murray ) and Country Magazine Pty Ltd v. Federal Commissioner of Taxation (1968) 117 CLR 162; 15 ATD 86; (1968) 10 AITR 573 ( Country Magazine ).

Arthur Murray involved a taxpayer who carried on a business of giving dancing tuitions. The taxpayer often received payments for tuition courses in advance. Whilst students did not have a contractual right to refunds, the taxpayer occasionally made refunds. The taxpayer lodged their income tax returns on the basis that payments received in advance of lessons taught did not form part of its assessable income immediately upon receipt. The payments were only assessable once earned by the giving of the lessons.

In deciding in Arthur Murray that amounts received in advance for dancing lessons were not derived until the lessons were actually given, the Court found that the circumstances of the receipt made it 'necessary as a matter of good business sense' that the taxpayer should treat fees received but not yet earned 'as subject to the contingency that the whole or some part of it may have to be paid back, even if only as damages, if the taxpayer failed to render agreed services'.

In Country Magazine , the Court adopted a similar approach in relation to subscriptions received by a publisher for magazines to be published in future years. The Court accepted that subscriptions received for magazines to be published in a future year were derived only when the magazines had been sent to subscribers or the moneys had been used to make refunds or meet claims in respect of magazines that had not been supplied.

In this case, the taxpayer charges a one off membership fee which provides customers unlimited access to its website for as long as the website is operational. However, unlike Arthur Murray and Country Magazine , the membership fees 'come home' to the taxpayer immediately upon receiving the payments in that there is nothing more for the taxpayer to do to earn the payments. All that the taxpayer is required to do to earn the payments, at the time of receiving the membership fees, is to have an operational website to which members then have unlimited access so long as that website continues to operate.

As such, the payments are not made to the taxpayer in advance of the supply of services. The taxpayer is not under a contractual requirement to operate the website for a specified period of time. This stands in contrast to Arthur Murray , where the taxpayer there was required to render services based on the hours they were contracted to provide dance lessons, and Country Magazine where that taxpayer was required to supply to subscribers magazines issued over the contracted period.

The risk of having to make refunds is not determinative in this case. The contingency that some part or all of membership fees may have to be paid back only exists because members have a right to cancel their membership at any time. Unlike Arthur Murray and Country Magazine , the contingency is not linked to the failure to provide contracted services or goods.

Accordingly, under section 6-5 of the ITAA 1997, the taxpayer is required to include in its assessable income the full amount of membership fees in the income years it receives those fees.

Date of decision: 3 May 2004

Year of income:Year ended 30 June 2002
 Year ended 30 June 2003

Legislative references:
Income Tax Assessment Act 1997
   section 6-5

Case references:
Brent v. Federal Commissioner of Taxation
   (1971) 125 CLR 418
   71 ATC 4195
   2 ATR 563

Commissioner of Taxation (South Australia) v. Executor Trustee and Agency Co of South Australia Ltd
   (1938) 63 CLR 108
   (1938) 5 ATD 98

Arthur Murray (NSW) Pty Ltd v. Federal Commissioner of Taxation
   (1965) 114 CLR 314
   14 ATD 98
   9 AITR 673

Country Magazine Pty Ltd v. Federal Commissioner of Taxation
   (1968) 117 CLR 162
   15 ATD 86
   10 AITR 573

Keywords
Derived
Income
Business income

Siebel/TDMS reference number: 3950636, 1-BW5MTGD

Business line: Small Business/Individual Taxpayers

Date of publication: 21 May 2004

ISSN: 1445-2782

ATO ID 2004/426 (Withdrawn) history   Top  
   Date   Version 
    3 May 2004   Original statement   
 You are here ®  28 July 2017   Withdrawn   


 


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