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12 Pages Essays / Projects Year: Pre-2021

Question One Part A It is necessary to determine whether Bill and Margie are carrying on a partnership either under tax law or for general law purposes in order to determine the allocation of profits and losses. A partnership for tax law purposes is ‘an association of persons carrying on a business as partners or in receipt of income or statutory income jointly.’1Although Bill and Margie are in receipt of income jointly and as such are a partnership for tax law purposes, rent from jointly owned property and dividends from jointly owned shares are specifically excluded from the tax return of partnerships. A general law partnership is between two or more persons carrying on a business in common with a view to profit.2 At issue is whether Bill and Margie are carrying on a business. Case law authority in FCT v McDonald3 is analogous with the current case whereby Mr & Mrs McDonald were in receipt of income jointly were found to be co-owners rather than partners in relation to their property and as such shared the profits/losses in proportion to their respective interest in the property. Further, based on the factors outlined in TR 94/8 in relation to the intent and conduct needed to prove a partnership exists, it is unlikely that Bill and Margie would be found to be carrying on a partnership under general law.4


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