Talking Tax – Issue 196

By Frank Hinoporos

In this issue, we consider Qantas’ recent Full Federal Court win in its JobKeeper stoush with the union, and the interpretation of who is entitled to the COVID-19 cash flow boosts following on from the AAT’s decision in Slatter Building Group Pty Ltd and Commissioner of Taxation (Taxation) [2021] AATA 456. We also provide an update on the latest appeals, ATO guidance and rulings.

Buckle up, Qantas’ fight over JobKeeper entitlements isn’t over yet

In Qantas Airways Limited v Flight Attendants’ Association of Australia [2020] FCAFC 227 a majority in the Full Federal Court has upheld an appeal by Qantas Airways Limited in deciding that arrears payments may be taken into account in determining whether fortnightly JobKeeper entitlements have been passed on in full to employees.

ATO not obliged to pay interest on refunded GST

The High Court in FCT v Travelex Limited [2021] HCA 8 held that the ATO is not liable to pay interest on refunded GST as the refund did not create a running balance account (RBA) surplus as the refunded GST was not an entitlement under taxation law.

New Company not entitled to COVID-19 cash flow boost

The AAT in Slatter Building Group Pty Ltd and Commissioner of Taxation (Taxation) [2021] AATA 456 (10 March 2021) has held that a company incorporated by a sole trader in January 2020 is not entitled to the first cash flow boost, as no taxable supply was made in the tax period before 12 March 2020.

Queensland Supreme Court finds that companies with the same sole director are a group for payroll tax purposes

The Queensland Supreme Court in Salemade Pty Ltd & Ors v Commissioner of State Revenue (Qld) [2021] QSC 19 (18 February 2021) held that companies with the same sole director are a group for payroll tax purposes as the sole director has a ‘controlling interest’ in the companies, pursuant to s 71 of the Payroll Tax Act 1971 (Qld).

Appeals updates

Clough Limited v FCT [2021] FCA 108

The taxpayer has filed an appeal with the Full Federal Court in this matter. For a comprehensive overview of the issues in this case and the Federal Court’s decision, please see our Talking Tax - Issue 195.

FCT v Healius Ltd [2020] FCAFC 173

The High Court has dismissed the taxpayer’s application to appeal the Full Federal Court’s decision, which held that: lump sum payments made by doctors to transfer their practices to medical centres were not deductible under s 8-1 ITAA 1997.

ATO rulings and guidelines

Draft Taxation Ruling on personal services income (PSI) rules – TR 2021/D2

The draft ruling consolidates and updates existing guidance with no significant changes. It covers:

  • the meaning of PSI and what is, and is not a PSI;
  • how the 'owner' of the PSI is determined;
  • the effect of the PSI rules’;
  • the four personal service business tests (PSB) and how to apply for a PSB determination; and
  • how part IVA of the ITAA 1936 operates where the PSI rules do not apply and a PSB is being conducted.


This article was written with the assistance of Kevin Dorostkar, Law Graduate.


Frank Hinoporos

Frank Hinoporos the Hall & Wilcox Tax team. He advises on direct taxes, international structuring and taxation disputes.

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