Bills Digest no. 51 2007–08
Tax Laws Amendment (2007 Measures No. 6) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Schedule 1: Tax deduction for capital
expenditure for the establishment of trees in carbon sink
Schedule 2: Tobacco industry exit
Schedule 3: Deductible gift
Schedule 4: Farm management deposits
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for expenses incurred between 1 July 2007 and
30 June 2012 100 per cent in the year in which they were incurred,
for expenses for establishing forest incurred
on or after 1 July 2012, 7 per cent of such expenses per year, over
a 14 year and 105 day period.
Trees and other plants take up (sequester)
carbon dioxide from the atmosphere as they grow, through the
process of photosynthesis. While soils may lose carbon, e.g.
following cultivation, the amount of carbon in forest soils can
increase over time. Forests represent a carbon sink when they are
actively growing and sequestering carbon at a rate that exceeds any
soil carbon and other emissions.
Thus, a carbon sink forest is a forest that is
established for the primary and principal purpose of sequestering
carbon from the atmosphere. However a tax deduction in relation to
the cost of establishing such a forest will only be given if the
trees in the forest meet conditions specified in this Bill (see
The tax deductions available in respect of
expenses for establishing a carbon sink forest are available over a
14 year period if the forest is established on or after 1 July
2012, which the author understands is considerably less than the
effective life of a forest. Further, in order for the tax deduction
to be granted the primary purpose of such a forest must be to
absorb carbon dioxide from the atmosphere. It may be argued that on
the basis of these points that:
timber plantations that are established for the
purposes of felling for the production of wood products would not
qualify for these particular tax deductions, and
the expectation may be that these forests would
be in existence for at least a 14 year period, though this is
nowhere stated in either the Bill or its supporting
It is interesting to ponder the possible
consequences of the Bill s silences on whether a carbon sink forest
can be cut down after the end of the 14 year period. Suffice to say
that there is no measure in this particular Bill that suggests that
a carbon sink forest can never be cut down.
A broader issue is whether the proposed tax
deductions will encourage the further reduction of productive farm
land. That is, whether these deductions will encourage farmers to
take farm land out of production to establish carbon sink
It may be the case that larger emitters will
purchase farm land to plant carbon sink forests. However, the value
of the deductions may be such that only lower value land would be
suitable for this purpose. To the extent that this measure takes
marginal farm land out of production it may produce an additional
This measure was announced in the Treasurer s
media release of 8 May 2007.  The proposal is part of the 2007 08 Budget.
The initial reaction from conservation groups
to this initiative was one of scepticism. In particular, the
reaction of the Conservation movement would depend on the details
of the proposed arrangements. 
The Australian Conservation Foundation (ACF)
has not responded to this particular initiative. But it has noted
Due to their impermanent nature, carbon sinks
cannot permanently offset emissions from burning fossil fuels.
Carbon sinks should only be established to replace vegetation where
it has been lost from logging and clearing. Native vegetation must
not be cleared in order to establish sinks. 
However, it would be a mistake to characterise
the ACF s position as being opposed to this initiative.
The National Association of Forest Industries
welcomed the announcement of this initiative. 
This proposal may have the following
promote the planting of forests to absorb and
store excess atmospheric carbon dioxide
- promotes the planting of forests on land that has already been
cleared. Thus it has an inbuilt bias against clearing existing
the establishment of such forests may
facilitate the flow of carbon credits into any national emissions
allows tax deductions where small scale
plantings are undertaken by small business operators
However, there are significant doubts whether
carbon sink forests are able to make a long term positive
contribution to the absorption of carbon dioxide from the
atmosphere. These concerns are based on the declining efficiency of
forests to absorb more carbon dioxide than they emit if the climate
heats up.  If this
is the case then the establishment of carbon sink forests will be
of limited use in absorbing excess amounts of atmospheric carbon
The long-term security of stored carbon is
uncertain, due to pests and diseases, land clearing, the threat of
illegal logging, forest fires, and as noted above perhaps climate
change itself. While curbing emissions of carbon dioxide by
reducing consumption of fossil fuels may well bring more certain
climate change benefits.
Further, some consider that there is a danger
that the granting of these tax deductions may be seen as an
alternative to the curbing of carbon emissions. A long-term
solution to climate change may require fundamental changes in the
energy sector, with a shift away from primary reliance on fossil
fuels and toward renewable technologies and energy sources. Tax
deductions given for carbon sequestration may, shift emphasis away
from curbing carbon emissions in the energy sector.  It is not clear that this
is a concern held by a significant proportion of the environmental
The establishment of forests may have
additional environment benefits to that of absorbing atmospheric
carbon dioxide. For example, they may provide additional habitat
for threatened species, limit soil erosion and contribute to the
factors that prevent the spread of soil salinity. It would be a
mistake to assess the environmental benefits of such forests only
in terms of their capacity to absorb excess carbon from the
Furthermore, it is an unrealistic to expect
that any single response to the complex dimensions of climate
change will serve as a panacea. This initiative is perhaps more
appropriately viewed as part of a panoply of solutions, each
tackling a particular dimension of climate change.
Senator Milne, the Australian Greens climate
and energy spokesperson, has reportedly noted that a forest was not
the same as a plantation and that this initiative should
forests planted under this initiative should
stand for at least 100 years
the resulting forest must be biodiverse, that
is, be made up of different species of tree and other
the forest must be on land cleared before
it should not apply to forests established as a
managed investment scheme, and
it should not apply to forests established by
large business. 
The establishment of specific carbon sink forests
is not part of the Australian Greens policy. 
The Explanatory Memorandum notes that this
measure is expected to cost some $24.3 million to 2010 2011, as set
out in the following table.
Table 1: Expected financial impact of tax
deductions for establishment of carbon sink forests
Source: Explanatory Memorandum 
The main issue is whether the proposed tax
deductions will establish forests that will be of long term use in
absorbing excess carbon dioxide from the atmosphere.
Item 6 of Schedule
1 inserts proposed Division
40-J into the ITAA97. This proposed Division allows a tax
deduction for capital expenditure for the establishment of a carbon
These deductions are available under
proposed section 40-1005 provided
the taxpayer owns the trees in question and the trees are on land
held by the taxpayer, either under lease or as an outright
section 40-1010 in order to claim the deductions
in respect of the expenditure the tax payer must:
carry on a business for taxation purposes
plant the trees for the primary purpose of
not plant the trees for the purposes of felling
or using the trees for commercial horticulture, and
not incur expenditure under either a managed
investment scheme or a forestry managed investment scheme.
These last two points prevent those
establishing forests for mainly commercial purposes to access the
proposed tax deductions. However, the Explanatory Memorandum also
notes that these rules do not prevent a commercial forestry
operator from establishing a separate carbon sink forest for the
purposes of engaging in trading carbon credits.
As noted above, only expenditure on the
establishment of a carbon sink forest will be allowed as a tax
deduction. This precludes other types of related expenditure be
claimed as a deduction, such as:
These expenditures may, or may not, be claimed as
tax deductions under other sections of the tax legislation,
depending on the taxpayers circumstances. 
A significant issue is the quality of the
forests that will qualify for the proposed tax deductions.
Proposed subsection 40-1010
(item 6 also) also requires the taxpayer to meet
certain environmental guidelines when undertaking these plantings,
the forest occupies a continuous land area in
Australia of 0.2 hectares or more
at the time the trees are established it is
more likely than not that the trees will attain a crown cover of 20
per cent or more and reach a hight of at least 2 meters, and
the land on which the trees are planted was, on
1 January 1990, clear of other trees meeting the same
specifications of the first two of the above points.
The Environment Minister must, by legislative
instrument, made guidelines about environmental and resource
management in relation to carbon sink forests. These guidelines
will be a disallowable instrument. The establishment of the trees
must satisfy these guidelines in order for the relevant expenses to
be clamed as a tax deduction.
40-1020 prevents expenditure for draining swamp or low
lying land, or for clearing land, from being claimed as a tax
Forest quality comments
A hectare is 10 000 square meters or 2.471 acres.
Thus the minimum size of the land that is used for a carbon sink
forest is 20 per cent of a hectare, or 2 000 square meters.
Further, this land cannot be broken up into smaller parcels of less
than 0.2 hectares and still qualify for the proposed tax deduction.
Thus it is possible that rural residents on smaller landholdings
will be able to claim the proposed tax deductions if they also
generate income from a business.
There is no requirement that the business income,
against which the deduction is claimed, should have any connection
with the land on which the trees are planted. Thus rural residents
with offsite business income (say from a professional practice) may
claim the expenditure for establishing a carbon sink forest as a
The term crown cover has been defined as the area
covered by the crowns of trees growing closely together, often
expressed as a percentage for the combined crown cover of trees in
a defined area. 
The Victorian Department of Sustainability and
Environment has suggested that a eucalypt crown cover of between 10
and 29 per cent is regarded as a sparse cover. 
The Commonwealth Department of Agriculture
Fisheries and Forestry (DAFF), in its National Forest Inventory has
defined a forest as:
an area, incorporating all living and non-living
components, that is dominated by trees having usually a single stem
and a mature or potentially mature stand height exceeding 2 metres
and with existing or potential crown cover of overstorey strata
about equal to or greater than 20 per cent. This definition
includes Australia's diverse native forests and plantations,
regardless of age. It is also sufficiently broad to encompass areas
of trees that are sometimes described as woodlands.
Further the definition of a forest notes
the minimum crown cover for forest has been set
at 20 per cent. It also marks a boundary that can be mapped
reliably from satellite information in most areas. 
The minimum likely height of 2 meters is
classed, by DAFF as a low height for forestry purposes and the
minimum likely crown cover of 20 per cent is the minimum limit for
what is classed as woodland in forestry terms.  The classification of woodland
appears to be the forest with the least tree density.
On the basis of these standards it could be
argued that the quality of the proposed carbon sink forests is the
minimum acceptable quality of a forest in Australia. Given the
uncertain rainfall pattens in most of rural Australia, and the
generally degraded soil quality of a number of rural areas, this
minimum standard may be an appropriate one to apply in order to
allow the widest possible range of applicants to claim the proposed
Why 1 January
Finally, the Australian government has
committed itself to a target of 108 per cent of emissions over 1990
levels over the period 2008 to 2012.  This year (1990) is also the base
year in which the Koyto Protocol on climate change measured the
agreed emissions targets. It is interesting to note that the final
text of the Koyto Protocol allowed Australia to increase its
emissions by 8 per cent over its 1990 levels. 
On the basis of set Australian policy, and in
conformity with the Koyto Protocol, it appears appropriate to only
allow the proposed tax deduction on land that was clear of trees as
at 1 January 1990.
Can ground be cleared for the purpose of
establishing carbon sink forests?
These provisions also prevent a tax deduction
being claimed for expenditure establishing a carbon sink forest
planted on ground that was cleared for the purposes. As noted
above, expenditure made to clear or drain the ground cannot be
claimed as a tax deduction. Further, ground that has to be cleared
in order to plant a carbon sink forest is most likely not to have
been clear of trees as at 1 January 1990 (see proposed
subsection 40-1010(2)(c) item 6 , Schedule 1).
While the proposed legislation does not
specify that the trees must be of different types (i.e. not a
monoculture forest) the proposed guidelines may address this
Item 9 of Schedule
1 applies the changes in Part 1 of this
Schedule to the 2007 08 and later income
Item 10 repeals
proposed subsections 40-1005(1),
(2), (3) and (4)
ITAA97 and replaces them with new provisions, from 1 July 2012.
This section was inserted under Item 6 of the Bill
(see above).This change takes effect for the 2012 13 and later
income years under Item 2 of the Bill (see
commencement dates above).
The main change is contained in
proposed subsection 40-1005(2) applying after 1
July 2012, which inserts a formula for calculating the amount of
expenditure allowed as a tax deduction in the 2012 and later income
Under the provision of Item 6
above, 100 per cent of the expenditure incurred in establishing a
carbon sink forest in the years from 1 July 2007 to 30 June 2012
will be allowed as a deduction in the year in which the expenditure
Under these changes the allowable expenditure
is reduced to a fraction of the yearly establishment expenditure.
The amount is reduced in accordance with the number of days the
land is actually used for carbon sequestration, as measured from
the actual date of forest establishment. Further, the allowable
establishment expenditure deduction is:
7 per cent of this total a year, and
spread over a period of 14 years and 105 days
from the date the day the trees are established.
This provision is a very strong incentive for
carbon sink forests to be established in the period between 1 July
2007 and 30 June 2012. That is, the proposed deduction encourages
the rapid establishment of these forests during the next few
Further, if the trees are removed (or
destroyed say by fire) at any time during the year then the tax
deduction in respect of the remaining part of the year (and the
remaining part of the 14 years and 105 days period) is no longer
available. This is an incentive to keep the trees in the ground for
at least 14 years and 105 days if they are established on or after
1 July 2012.
Proposed section 40-1035
allows a person or entity buying a carbon sink forest, on or after
1 July 2012, to gain access to the unexpired portion of the
allowable yearly tax deductions. This will allow landholders or
lease holders to sell their interests in a carbon sink forest to
another person or entity.
Item 19 applies the
provisions of Part 2 of this Schedule from 1 July
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This schedule amends the ITAA97 to provide tax
free grants under the Tobacco Growers Adjustment Assistance Program
2006 to tobacco growers who undertake to leave all agricultural
enterprises for at least 5 years.
In recent years, the tobacco growing industry,
centred in Mareeba (Queensland) and Myrtleford (Victoria), has
faced significant adjustment pressures from deregulation and the
decision of tobacco manufacturers to scale back their purchases of
Australian tobacco leaf.
Producer licenses were cancelled following the
withdrawal of major tobacco manufacturers as buyers of Australian
grown tobacco. The excise licences of tobacco growers in Northern
Queensland were cancelled by the Australian Taxation Office in
February 2004, and tobacco growers in Victoria and southern
Queensland had their licences cancelled in October 2006, when the
manufacturers ceased purchases from these regions.
In October 2006, the Australian Government
announced a funding package to assist tobacco growers to
restructure and move into alternative business activities. As of
February 2007, the package comprises funding of $45.9 million.
Former tobacco growers in Northern Queensland are to be eligible
for up to $23.2 million, with those in Victoria and Southern
Queensland eligible for up to $21.8 million and $900 000,
respectively. The maximum grant will be $150 000 per grower.
The package of measures to enable farmers to
exit the tobacco growing industry is similar to other packages that
allowed farmers to exit the sugar and dairy industries.
These grants are not classed as income for
social security purposes. 
The proposal to class these grants as tax free
income was announced as part of the 2007 08 budget. 
This measure gives the same tax treatment to
these grants as was given to grants made Sugar Industry Reform
Program to those who left the agricultural industry altogether.
The financial impact of this measure is shown
in the following table.
Table 2: financial implications of tax free
grants to tobacco growers exiting the industry
Source: budget Paper No. 2 2007 08, p. 26.
Item 3 amends the table in
section 53-10 ITAA97. The effect of this amendment
is to exempt a grant made to a person under the Tobacco Growers
Adjustment Assistance Program if they enter into an undertaking not
to become the owner or operator of any agricultural enterprise
within 5 years after receiving the grant.
Item 4 exempts these grants
from the Goods and Services Tax (GST), under the same
Item 5 applies these
amendments to the 2007 08 income year and later years.
The tax free status of these grants is not
jeopardised if a recipient simply continues to work in the rural
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This Schedule amends the ITAA97 to update the
list of deductible gift recipients (DGRs) to include one new entity
and to extend the time period for DGR status for another
The Council for Jewish Community Security
(CJCS) is added to the DGR list from 10 August 2007 and the DGR
status of the United Nations High Commission for Refugees (UNHCR)
is being extended to 27 June 2012.
The CJCS appears to be a domestic Jewish
organisation that provides funds to improve the physical security
of Jewish educational, cultural and religious facilities.  It appears to be a
relatively new orgainsation.
A deductible gift recipient (DGR) is a fund or
organisation that can receive tax deductible gifts.
To be a DGR an organisation has to be one of
included in the list of such organisations in
Division 30 of the ITAA97
fall within a category of organisations listed
in Division 30 ITAA97
be a prescribed private fund listed by name in
the Income Tax Assessment Regulations 1997, or
endorsed as a DGR by the Commissioner for
To be entitled to DGR endorsement by the
Commissioner, an organisation must:
fall within a general DGR category in its own
right, or operate a fund, authority or institution that falls into
a general DGR category
have an Australian business number
- maintain a gift fund, and
be in Australia (with some exceptions).
The general categories of DGRs are:
harm prevention charities
disaster relief organisations
- overseas aid funds
school building funds
sports and recreation organisations
industry, trade and design organisations
- defence organisations
philanthropic trusts, and
fire and emergency services organisations.
The above list is not exhaustive.
The addition of the Council for Jewish
Community Security was noted by the Minister for Environment and
Water Resources.  However, it was formally announced by the Minister for
Revenue and Assistant Treasurer on the same day, 10 August 2007.
The extension of the time period during which
the UNHCR has DGR status was announced on 17 August 2007. 
These amendments to the list of DGRs
facilitate the support of various causes.
However, there is some cost to revenue flowing
from these amendments.
The ALP has promised support for strengthening
security at Jewish educational institutions. 
The following table illustrates the cost to
revenue that may arise from the proposed amendments to the list of
Table 3: Effect on revenue of adding various
organisations to the list of DGRs
Source: Explanatory Memorandum 
Item 1 extends the time that
the UNHCR qualifies as a DGR to 28 June 2012. Item
2 applies this change from 28 June 2007.
Item 4 inserts the Council
for Jewish Community Security into the list of DGRs in ITAA97.
Item 3 allows gifts made to this organisation to
be tax deductible if made on or after 9 August 2007.
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This Schedule amends the Farm Management
Deposits (FMD) Schedule in the Income Tax Assessment Act
1936 (ITAA36) so that tax law is aligned with guidelines for
all primary producers in a geographical area,
a specified classes of primary producers in a
to be in exceptional circumstances.
The effect of these changes will be to allow
who made an FMD before their area was declared
to be in exceptional circumstances,
to draw upon those deposits within a 12 month
period once an exceptional circumstances declaration has been
applied to them
without losing the tax advantages of initially
making the FMD.
Under existing legislation, if a primary producer
has made an FMD before an exceptional circumstances (EC)
declaration for their area was made, they cannot draw on that
deposit before a 12 month period has expired and retain the tax
advantages of doing so.
The proposed amendments to the ITAA36 base the
eligibility to retain the relevant tax deductions if withdrawals
are made on when the EC declaration applies to a person making the
withdrawal, rather on when the EC declaration applies to the
relevant geographic area.
The FMD scheme is designed to allow primary producers to, in
effect, shift income from good to bad years in order to deal with
adverse economic events and seasonal fluctuations
The FMD scheme allows primary producers (with
a limited amount of non-primary production income) to claim tax
deductions for FMDs made in the
year of deposit (and to reduce their PAYG instalment income
accordingly). When an FMD is withdrawn, the amount of the deduction
previously allowed is included in both their PAYG instalment income
and their assessable income in the repayment year. 
While deposits can be held in accounts of any
terms (including at call accounts), the general rule is that the
deposit must not be repaid within 12 months (other than because the
owner dies, becomes bankrupt, ceases to be a primary producer or
the amount is transferred to another financial institution).
There is an exception to the 12-month rule for
persons in exceptional circumstances areas. In such cases, persons
cannot make other deposits in the same tax year. Such areas are
declared by the Minister for Agriculture, Fisheries and Forestry.
An exceptional circumstances certificate must be obtained within
three months after the end of the income year of the withdrawal.
The amount withdrawn is tax assessable in the income year of the
Failure to comply with this rule may result in
the deposit not being treated as an FMD from the
time the deposit was made.  This would result in a denial of the claimed tax
deduction in respect of the FMD made.
Exceptional circumstances (EC) are those
climatic and other events of sufficient rarity and severity as to
be considered outside the scope of reasonable and responsible risk
management strategies. Relatively short periods of income decline,
due to fluctuations in both seasonal and market conditions are not
included, as farmers are expected to have strategies in place to
deal with these. This means, for example, that a drought as defined
in meteorological terms does not automatically qualify for EC.
For a region or industry to be declared
eligible for EC assistance the event must be rare and severe. The
effects of the event must result in a severe downturn in farm
income over a prolonged period and the event must not be a
predictable part of the process of structural adjustment.
An area or region becomes declared as
experiencing an EC event. The EC declaration triggers short-term
support for farmers in situations beyond the scope of normal risk
management, and when the future of significant numbers of farmers
in a region is at risk. Support is also available to
agriculture-dependent small businesses.
An area or region is said to be prima facie
declared when the Australian Government Minister for Agriculture,
Fisheries and Forestry receives an application for EC, agrees that
a prima facie case has been established and refers the application
to the National Rural Advisory Council (NRAC) for advice. The prima
facie declaration triggers interim income support for farmers and
agriculture-dependent small businesses while the EC application is
being assessed. 
Severe and prolonged drought affects much of
Australia, especially the main agricultural production areas. At
present, more than 44 per cent of Australia s agricultural land has
been EC declared. 
The proposed amendments will enable a wider
range of farmers to draw on their FMDs, without losing the tax
advantages of first making the deposit.
The Explanatory Memorandum notes that the
revenue of this measure is expected to be nil. However, there may
be a small cost to revenue if taxpayers need to amend their prior
tax assessments. 
Item 1 amends paragraphs
393-37(3)(b) and (c) in Schedule 2G ITAA36. The effect of these
amendments is to allow a person to retain the tax benefits of
making an FMD, if it is withdrawn within a 12 month period of first
making that deposit, when
the deposit was made before they were subject
to an EC declaration, and at the time of the withdrawal they are
eligible to be subject to such a declaration, or
an EC declaration applies to them within a 3
month period after the end of the income year in which such a
withdrawal is made.
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. Chris Johnson,
Forest plan raises doubts, queries , The West Australian,
10 May 2007, p. 8.
. Chris Johnson,
. The Hon. Peter
Costello MP, Treasurer, Explanatory Memorandum to the Tax Laws
Amendment (2007 Measures No. 6) Bill 2007 (hereafter Explanatory
Memorandum), 13 September 2007, p. 3.
. See Explanatory Memorandum, pp. 17 18.
Memorandum, p. 13.
Commission, Trade and Assistance Review 2005 06, April
2007, pp. 3.10 3.11.
. The Hon.
Peter Costello MP, Treasurer, and Senator the Hon. Nick Minchin,
Minister for Finance and Administration, Budget Measures
2007 08 (Budget Paper No. 2), 8 May 2007, p.
. Jewel Topsfield, Lib, Labor pledge funds to aid Jewish
security , Age, 11 August 2007, p. 8.
. Explanatory Memorandum, p. 4.
. CCH, 2007 Australian Master Tax Guide, Topic
. op. cit., topic 18-293
. Ley, Hon.
Sussan, Second reading speech: Farm Household Support Amendment
Bill 2007 , House of Representatives, Debates, 1 March
2007, p. 2.
Memorandum, p. 5.
18 September 2007
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