Income tax: is the business of 'beach worming' primary production under the definition in subsection 6(1) of the Income Tax Assessment Act 1936?

No. 'Beach worming' is not primary production as defined in subsection 6(1).

Worms are, by definition, 'animals' (see Macquarie Dictionary ). Only animals that are domesticated or tamed are within the definition of primary production and animals ' ferae naturae ' (of a wild nature) are not ( Burnside & Marrakai Ltd v. FC of T (1957) 11 ATD 181). A wild animal loses its character of being ferae naturae when its possessor has such power over it that it is always under some form of restraint and cannot follow its natural propensities completely (e.g. hived bees) ( per Wright J., R v. Philbey 48 S.J 216). The 'maintenance of animals' requires the primary producer to have ownership and possession of the animals or to be their keeper, but nobody has possession or full ownership of animals of a wild nature until they are taken ( Burnside ). Beach worming does not fall within the defination of primary production because beachworms are animals ferae naturae. In addition, nobody can be said to have full ownership or possession of beach worms until they are taken.

'Fishing operations' is defined in subsection 6(1) to include operations conducted for the purposes of a business which directly relate to the taking or catching of fish, turtles, dugong, crustacea, oysters and shellfish. We consider that the catching of worms for the purpose of selling the worms to another person does not constitute such operations.

Holding a fishing licence, which entitles a person to carry on a 'beach worming' business, does not bring this activity within the definition of 'fishing operations'.