CURRENCY:

This issue of Client Alert takes into account all developments up to and including 16 March 2016.

Deadline looming for SMSF collectables compliance

From 1 July 2011, self managed superannuation fund (SMSF) investments in collectables and personal-use assets have been subject to strict rules under Superannuation Industry (Supervision) Regulation (SIS Regulation) 13.18AA.

The ATO has reminded trustees of SMSFs that acquired such collectables or personal-use assets before 1 July 2011 that time is running out to ensure they meet the SIS Regulation requirements. Assets considered collectables and personal-use assets include artwork, jewellery, antiques, vehicles, boats and wine.

Investments in such items must be made for genuine retirement purposes and must not provide any present-day benefit. Under the rules:

• items cannot be leased to or used by a related party;
• items cannot be stored or displayed in a private residence of a related party;
• decisions about storage must be documented and the written records kept; and
• items must be insured in the fund’s name within seven days of their acquisition.

In addition, if an item is transferred to a related party, a qualified independent valuation is required.

For investments held before 1 July 2011, SMSF trustees have until 1 July 2016 to comply with the rules. The ATO said trustees need to consider what actions are appropriate. Actions may include reviewing current leasing agreements, making decisions about storage and arranging insurance cover.

Trustees disposing of a collectable or personal-use asset can transfer it to a related party without a qualified independent valuation, but only if the transfer takes place before 1 July 2016 and the transaction is made on arm’s-length terms.

As trustees have had since July 2011 to make appropriate arrangements, the ATO expects that they will ensure their SMSFs meet the requirements before the deadline.

Source: ATO media release, “Collectables – don’t leave it too late!”, 3 March 2016, https://www.ato.gov.au/Super/Self-managed-super-funds/In-detail/News/Collectables—don-t-leave-it-too-late/.

Overseas student debts: repayment thresholds

From 1 July 2017, anyone with a Higher Education Loan Programme (HELP) debt and/or a Trade Support Loans (TSL) debt who is living overseas and earning above the minimum repayment threshold will be required to make loan repayments, just as they would if they were living in Australia.

Repayment income and rates

A notice has been gazetted specifying the HELP repayment incomes and rates for the 2016–2017 financial year. The details are displayed in the following table.

HELP repayment thresholds and rates 2016–2017
For repayment income in the range	Percentage rate to be applied to repayment income
Below $54,870	Nil
$54,870 to $61,120	4%
$61,121 to $67,369	4.5%
$67,370 to $70,910	5%
$70,911 to $76,223	5.5%
$76,224 to $82,551	6%
$82,552 to $86,895	6.5%
$86,896 to $95,627	7%
$95,628 to $101,900	7.5%
$101,901 and above	8%

Source: Commonwealth Gazette, “Notification of repayment incomes and repayment rates for the Higher Education Loan Program (HELP) for the 2016-17 income year”, 1 March 2016 https://www.legislation.gov.au/Details/C2016G00298

ATO data-matching for insured “lifestyle” assets

In January 2016, the ATO advised it was working with insurance providers to identify policy owners on a wider range of asset classes, including marine vessels; aircraft; enthusiast motor vehicles; fine art; and thoroughbred horses.

The ATO has since gazetted a notice formally announcing the data-matching program. The ATO will acquire details of insurance policies for these assets where the value exceeds nominated thresholds for the 2013–2014 and 2014–2015 financial years. The asset thresholds are as follows:

• marine vessels: $100,000;
• aircraft: $150,000;
• enthusiast motor vehicles: $50,000;
• fine art: $100,000 per item; and
• thoroughbred horses: $65,000.

The ATO will obtain policyholder identification details (including names, addresses, phone numbers and dates of birth) and insurance policy details (including policy numbers, start and end dates, assets insured and physical locations of the assets). The data-matching program will assist the ATO with:

• profiling taxpayers (providing a more comprehensive view of a taxpayer’s accumulated wealth);
• identifying possible compliance issues; for example:
• asset betterment – taxpayers may be accumulating or improving assets but not including sufficient income in their taxation returns to show the financial means to pay for them;
• income tax and capital gains – taxpayers may be disposing of assets and not declaring the revenue and/or capital gains on those disposals;
• goods and services tax (GST) – taxpayers may be purchasing assets for personal use through businesses or related entities and claiming input tax credits they are not entitled to;
• fringe benefits tax (FBT) – taxpayers may be purchasing assets through their business entities, but applying those assets to the personal enjoyment of an associate or employee, which gives rise to an FBT liability; and
• superannuation – self managed superannuation funds (SMSFs) may be acquiring assets but applying them to the benefit of the fund’s trustee or beneficiaries; and
• identifying avenues available to assist in debt management activities.

It is estimated that records of more than 100,000 insurance policies will be obtained. Further details, including the list of insurers participating in the data-matching program, are available on the ATO website at https://www.ato.gov.au/General/Gen/Lifestyle-Assets-Data-Matching-Program-Protocol/.

Source: Commonwealth Gazette, “Notice of Data Matching Program – Lifestyle Assets”, 16 February 2016, https://www.legislation.gov.au/Details/C2016G00243.

Market value of shares is not the selling price

In a noteworthy decision, the AAT has ruled that the “market value” of a parcel of shares in a private company that a taxpayer sold in an arm’s-length transaction (together with the other two shareholders’ shares in the company) was not his proportion of the sale price received from the sale of all the shares, but a discounted amount. This caters for the fact that the market value of his shares alone as a “non-controlling” shareholder was a lesser amount. As a result, the taxpayer passed the $6 million “maximum net asset value” (MNAV) test for the purposes of qualifying for the capital gains tax (CGT) small business concessions, where otherwise he would not have.

Background

The taxpayer was one of three equal shareholders in a private company. The three shareholders sold their shares in the company for $17.7 million under a contract of sale to an arm’s-length purchaser. The taxpayer was entitled to $5.9 million in respect of his one-third shareholding in the company. The issue for the AAT’s consideration was whether the taxpayer passed the $6 million MNAV test. Taken together with the market value of the taxpayer’s other assets, a market value of $5.9 million for the shares sold would mean the taxpayer failed the test.

The taxpayer drew the AAT’s attention to the established test in Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418 for determining the market value of an asset – namely, what “willing but not anxious parties” would be prepared to buy and sell the assets for. He argued that the market value of his shares was not necessarily equal to the amount paid by the arm’s-length purchaser in his case, but was something less. The Commissioner, on the other hand, essentially argued that in an arm’s-length transaction the market value of an asset was its selling price.

Decision

The AAT first noted that it is often the case, but not always, that the actual selling price of an asset at a particular time represents its “market value” just before that time. Therefore, it would be entirely “uncontroversial” to find that the market value of an asset in an arm’s-length transaction is its actual selling price – provided that the parties were “willing and not anxious” and the subject matter of the contract was identical to the property whose “market value” needed to be determined.

However, the AAT found that was not true in this case, as the subject matter of the sale agreement was the entire 300 shares in the company, giving the buyer “complete control of the company, which the sale of [the taxpayer’s] shares alone would not have done”. The AAT recognised the relative lack of control enjoyed by the taxpayer as a result of his owning only one-third of the total shares in the company, and therefore agreed with his valuer’s application of a discount to the taxpayer’s one-third share of the total capital proceeds received for the sale of all the shares.

As a result, the AAT ruled that “the correct enquiry is directed towards determining the market value of the taxpayer’s shares alone – not as part of a package comprising the entire 300 shares in the company”. It found that the consideration the taxpayer received for his shares was more than a hypothetical “willing but not anxious” purchaser would have paid if purchasing the taxpayer’s shares alone.

The AAT concluded that the actual consideration the taxpayer received should not be ignored as an indicator of the market value of his shares just before the time of the CGT event, but it was not determinative of that market value. In these circumstances, the AAT agreed that the market value of the taxpayer’s shares was $5.9 million less a 16.7% discount for the “lack of control” factor. This decision meant that the taxpayer passed the $6 million MNAV test for the purposes of qualifying for the CGT small business concessions, where otherwise he would not have.

Appeal

The Commissioner has appealed to the Federal Court against this AAT decision.

Re Miley and FCT [2016] AATA 73, AAT, File No 2013/6008, 2013/6009, Frost DP, 15 February 2016, http://www.austlii.edu.au/au/cases/cth/AATA/2016/73.html.

Individual not a share trader

The AAT has found that a taxpayer was not carrying on a business of share trading, and accordingly was not entitled to claim a loss resulting from her share transactions.

Background

The taxpayer, a childcare worker, began trading shares during the 2011 income year. She incurred a $20,000 loss for the income year, which she sought to claim as a deduction. As a childcare worker, the taxpayer earned around $40,000 in the 2011 income year. In contrast, she turned over approximately $600,000 in share transactions (including both purchases and sales) for that income year.

The taxpayer told the Commissioner that she usually spent five to 10 hours per week conducting research and share trading, although she later altered this information, saying it was approximately 15 to 25 hours weekly. The taxpayer’s oral evidence before the AAT demonstrated that she had very little knowledge of the companies she had invested in, as she was unable to list many of the names of the “blue chip” companies in which she had purchased shares or to recall what industries they operated in. Furthermore, the AAT noted that the single-paged business plan the taxpayer produced (which was not previously shown to the Commissioner) was written for the tribunal proceedings and did not exist in the 2011 income year.

Decision

In deciding that the taxpayer was a share investor and not a share trader, the AAT considered each of the key indicators established in case law, in particular those listed in AAT Case 6297 (1990) 21 ATR 3747. The AAT decided that a lack of regular and systematic trade, especially in the second half of the 2011 income year – when only 10 transactions were made – went against the taxpayer’s contention that she was conducting a share trading business.

It was more likely, the AAT said, that the taxpayer was only spending the originally purported five hours per week on researching and trading stock. Furthermore, the AAT found that the taxpayer’s methods of research (eg reading financial newspapers) lacked the “sophistication to constitute a share trading business”. In particular, the taxpayer lacked the knowledge and experience to trade in shares, and was likely relying on her husband’s advice. While the AAT did concede that the capital involved in the taxpayer’s transactions was substantial, it noted that this could indicate either share investment or a business of share trading. Accordingly, as the relevant factors weighed against the taxpayer, the AAT affirmed the Commissioner’s decision to treat her as a share investor and to deny a deduction for her losses.

Re Devi and FCT [2016] AATA 67, AAT, File No 2014/4297, Lazanas SM, 9 February 2016, http://www.austlii.edu.au/au/cases/cth/AATA/2016/67.html.

Small business restructures made easier

The Tax Laws Amendment (Small Business Restructure Roll-over) Act 2016, passed on 8 March 2016, amends ITAA 1997 to provide an optional rollover for small business owners who change the legal structure of their business on the transfer of business assets from one entity to another (new Subdiv 328-G). The effect of the rollover is that the tax cost of transferred assets is rolled over from the transferor to the transferee.

This is in addition to existing rollovers which are available where an individual, trustee, or partner transfers assets to, or creates assets in, a company in the course of incorporating their business.

Eligibility

The new optional rollover will be available where a small business entity transfers an active asset of the business to another small business entity as part of a genuine business restructure, without changing the ultimate economic ownership of the asset.

The rollover applies to gains and losses arising from the transfer of active assets that are capital gains tax (CGT) assets, depreciating assets, trading stock or revenue assets between entities as part of a genuine restructure of an ongoing business.

Genuine restructure

The transfer of the assets must be part of a “genuine” restructure of an ongoing business (as opposed to an “inappropriately tax-driven scheme”).

Whether a restructure is “genuine” will be determined with regard to all of the facts and circumstances. Relevant matters include whether it is a bona fide commercial arrangement undertaken to enhance business efficiency, whether the transferred assets continue to be used in the business and whether the restructure is a preliminary step to facilitate the economic realisation of assets.

A “safe harbour” rule provides that the restructure is “genuine” for three years after the rollover if there is no change in the ultimate economic ownership of any of the significant assets of the business (other than trading stock); those significant assets continue to be active assets; and there is no significant or material use of those significant assets for private purposes.

Entities that can access the rollover

To be eligible for the rollover, each party to the transfer must be:

• a small business entity for the income year during which the transfer occurred;
• an entity that has an affiliate that is a small business entity for that income year;
• connected with an entity that is a small business entity for that income year; or
• a partner in a partnership that is a small business entity for that income year.

“Small business entity” takes its usual meaning, as defined in Subdiv 328-C of ITAA 1997.

The rollover also applies to “passively held” assets of a small business that may, for example, be held in an entity other than the one carrying on the business (eg an affiliate or a connected entity that is a small business entity).

Ultimate economic ownership

The transfer must not have the effect of changing the ultimate economic ownership of transferred assets in a material way. The ultimate economic owners of an asset are the individuals who, directly or indirectly, beneficially own an asset. Ultimate economic ownership of an asset can only be held by natural persons. Therefore, where a company, partnership or fixed trust owns an asset, the natural person owners of the interests in these interposed entities will ultimately benefit economically from that asset.

If more than one individual is an ultimate economic owner of an asset, there is an additional requirement that each of the individuals’ shares of that ultimate economic ownership be materially unchanged, maintaining the same proportionate ownership in the asset.

Discretionary trusts may be able to meet the requirements for ultimate economic ownership “on their facts”; for example, where there is no practical change in which individuals economically benefit from the assets before and after the rollover, there will not be a change in ultimate economic ownership on the facts.

Otherwise, a discretionary trust may meet an alternative ultimate economic ownership test, whereby every individual who had ultimate economic ownership of the transferred asset before the transfer and every individual who has ultimate economic ownership of the transferred asset after the transfer must be members of the family group relating to the family trust.

Eligible assets

Where a party to the transfer is itself a small business entity, the asset being transferred must be a CGT asset that is “active” (as defined in s 152-40).

Where a party to the transaction is an affiliate or connected entity with a small business entity, the asset must be an active asset that satisfies s 152-10(1A). Among other things, this requires that the relevant small business entity carries on business in relation to the asset.

Where a party to the transaction is not a small business entity, but is a partner in a partnership that is a small business entity, the asset must be an active asset and an interest in the asset of the partnership.

Other

Both the transferor and the transferee of the assets must be residents of Australia. The transferor and transferee must both choose to apply the rollover. The rollover will not apply for a transfer to or from an exempt entity or complying superannuation entity.

Effect of the roll-over

The rollover provides for tax-neutral consequences by “switching off” the application of the existing income tax law – but only for the purpose of the transfer, and not for the purposes of goods and services tax (GST), fringe benefits tax (FBT) or stamp duty.

The rollover provides that the transfer takes place for the asset’s “rollover cost” – which is the transferor’s cost of the asset for income tax purposes, such that the transfer would result in no gain or loss for the transferor. The transferee will be taken to have acquired each asset for an amount that equals the transferor’s cost just before the transfer.

CGT assets

For the transfer of a CGT asset, the tax law will apply under the rollover as if the asset had been transferred for an amount equal to the cost base of the asset. Further, pre-CGT assets transferred under the rollover will retain their pre-CGT status in the hands of the transferee.

In respect of the availability of the CGT discount to the transferee, the period of eligibility for the CGT discount will recommence from the time of the transfer.

Trading stock

Assets that are trading stock of the transferor will be held as trading stock by the transferee. The transferee will inherit the transferor’s cost and other attributes of the assets as the transferor just before the transfer.

To the extent that the asset is trading stock of the transferor, the rollover cost will be the cost of the item for the transferor at the time of the transfer; or, if the transferor held the item as trading stock at the start of the income year, the value of the item for the transferor at that time.

Revenue assets

The rollover cost is the amount that would result in the transferor not making a profit or loss on the transfer. The transferee will inherit the same cost attributes as the transferor just before the transfer.

Depreciating assets

Rollover relief will be available for depreciating assets (under s 40-340) where a rollover under the new measures would be available if the asset were not a depreciating asset. As a result, the transferee can deduct the decline in value of the depreciating asset using the same method and effective life as the transferor used.

Membership interests

Where membership interests are issued in consideration for the transfer of an asset, the cost base of those new membership interests is worked out based on the sum of the rollover costs and adjustable values of the rollover assets, less any liabilities that the transferee undertakes to discharge in respect of those assets, divided by the number of new membership interests.

The rollover does not require that market value consideration, or any consideration, be given in exchange for the transferred assets.

However, an integrity rule ensures that a capital loss on any direct or indirect membership interest in the transferor or transferee that is made subsequent to the rollover will be disregarded, except to the extent that the taxpayer can demonstrate that the loss is reasonably attributable to something other than the rollover transaction. This rule also applies where a transfer of value from an entity results in the creation of tax losses on later disposal of the membership interests.

It is important to note that in particular cases, restructuring to obtain timing advantages or other significant tax benefits in relation to membership interests and other interests in the entities involved in the transaction may mean that the “genuine “ restructure requirement is failed.

Small business concessions

Where the transferor has previously chosen to apply a small business rollover under Subdiv 152-E and a replacement asset is transferred under this rollover, the transferee is taken to have made the choice for the purposes of CGT events J2, J5 and J6.

For the purpose of determining eligibility for the 15-year CGT exemption for small businesses, the transferee will be taken as having acquired the asset when the transferor acquired it.

Date of effect

The amendments apply to:

• transfers of depreciating assets, where the balancing adjustment event arising from the transfer occurs on or after 1 July 2016;
• transfers of trading stock or revenue assets, where the transfer occurs on or after 1 July 2016; and
• transfers of CGT assets, where the CGT event arising from the transfer occurs on or after 1 July 2016.

Source: Tax Laws Amendment (Small Business Restructure Roll-over) Bill 2016, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;page=0;query=BillId%3Ar5606%20Recstruct%3Abillhome.

Tax law changes to treatment of earnouts

The Tax and Superannuation Laws Amendment (2015 Measures No 6) Act 2016, passed on 25 February 2016, amends ITAA 1997 to change the capital gains tax (CGT) treatment of the sale and purchase of businesses involving certain earnout rights. As a result, capital gains and losses arising in respect of look-through earnout rights will be disregarded. Instead, payments received or paid under the earnout arrangements will affect the capital proceeds and cost base of the underlying asset or assets to which the earnout arrangement relates when they are received or paid (as the case may be).

The Act also amends the rules relating to amendments to assessments, interest charges, recognition of capital losses and access to CGT concessions. This is to ensure the new treatment provides taxpayers with outcomes consistent with those had the value of all of the financial benefits under the earnout right been included in the capital proceeds from the disposal of the underlying asset for the seller and the cost base of the underlying asset for the buyer at the time of the disposal.

Changes from the draft Bill

The Act as passed is essentially the same as the original draft legislation. However, the following changes are notable:

• Financial benefits must be provided within five years in order to qualify as an “eligible” earnout arrangement. This was extended from the four-year period in the draft.
• It was unclear under the draft legislation how the measures would interact with the rules for accessing the CGT small business concession via the maximum net asset value test and, in particular, whether this would be determined only at the time of disposal without regard to any future potential future financial benefits to be provided. However, under the Act, taxpayers can elect to take into account any future financial benefits for this purpose.
• The Act explains in detail how the earnout measures will interact with the new “foreign resident CGT withholding” measures (also introduced in the Act).

Look-through earnout rights

A look-through earnout right is a right to future financial benefits which are not reasonably ascertainable at the time the right is created. The right must be created under an arrangement involving the disposal of a CGT asset that is an  “active asset” of the seller, and the financial benefits under the right must be contingent on and reasonably related to the future economic performance of the asset (or a related business). As a result, a look-through earnout right must be created as part of an arrangement for a disposal of the business or its assets (ie the disposal must cause CGT event A1 to happen).

A right will also be a look-through earnout right if it is a right to receive financial benefits provided in exchange for ending a right that is a look-through earnout right.

For these purposes, an “active asset” is an asset of the taxpayer used in the taxpayer’s business or a “connected” or “affiliated” entity. The definition allows interests in foreign entities to be active assets for the purpose of this measure.

A membership interest in an Australian resident company or trust will also be an active asset if at least 80% of the assets of the company or trust (by value) are active assets. However, special rules apply in this case: if, for example, the sole asset of Company A is a share in Company B, which itself only holds a share in Company C, the character of interests in both A and B will depend on the character of the assets of C.

Further, in determining if such interests are active assets, the amendments provide that an eligible share or an interest in a trust is treated as an active asset in the hands of an entity for the purpose of determining if a look-through earnout right exists. For these purposes, the entity holding the share or interest must either:

• if they are an individual – be a CGT concession stakeholder in relation to the company or trust; or
• if they are not an individual – own a sufficient share of the business that they would be a CGT concession stakeholder were they an individual.

In addition, the trust or company must carry on a business and have done so for at least one prior income year, and at least 80% of the assessable income of the trust or company for the immediately preceding income year must have come from the carrying-on of a business (not derived as an annuity, interest, rent, royalties or foreign exchange gains, or derived from or in relation to financial instruments). Importantly, this test allows taxpayers to avoid having to value the assets of the trust or company. Instead, they need only look at how the trust or company earned its income over the past income year.

It is important to note that look-through earnout rights must be created as part of arrangements entered into on an arm’s-length basis. The look-through measures are not intended to provide tax benefits to temporary transfers (such as a loan or granting of a lease), ongoing business relationships (such as the purchase of an ownership interest) or complex financing arrangements where there is no final disposal of the underlying asset.

Contingent on the future economic performance of the asset

To be a look-through earnout right, the future financial benefits provided under that right must be linked to the future economic performance of the asset or a business in which the asset is used and not reasonably ascertainable at the time the right is created. Where the measure of performance relates to a business, there must be a reasonable belief at the time of disposal that the asset will actually be used in this business. In the case of the entity disposing of the asset, this will be based on what is reasonable given their knowledge of the intention of the other party.

Whether a particular measure appropriately identifies economic performance will depend on the context of the business or asset in question. Measures that may be appropriate include financial measures such as the profit, sales or turnover of the business (or the business in which the asset is used), and non-financial measures such as the number of clients retained. However, any measure adopted must be reasonable in the particular context. For a right to be a look-through earnout right, the value of the benefits must also reasonably relate to the performance.

Five-year payment limitation

For a right to be a look-through earnout right, it must not require financial benefits to be provided more than five years after the end of the income year in which the relevant CGT event occurs in relation to disposal of the relevant active asset. This ensures concessions for look-through earnout rights are not available to long-term profit-sharing arrangements and avoids providing an excessive and distorting benefit to look-through earnout rights.

However, this requirement is not breached simply because one party or another may be late in providing a financial benefit under the look-through right, even if the other party tolerates this lateness. It will also not be breached if the agreement includes provisions that allow for a delay in payment contingent on events, such as a dispute over the terms of the agreement being subject to a binding arbitration process. The relevant contingency must be outside the control of either party.

The five-year requirement will be breached if the agreement includes an option for the parties to extend the period over which financial benefits are provided, or to enter into a new agreement providing for continuation of substantially similar financial benefit. Further, the right will be taken to have never been a look-through earnout right if the parties vary the right to extend the period over which financial benefits are provided beyond five years or enter into a new agreement to create an equivalent right to further future financial benefits.

Consequences of a right being a look-through earnout right

If a right is a look-through earnout right, the value of the right is disregarded for the purposes of CGT, and the value of any financial benefits made or received under the right is included in either the capital proceeds arising from the disposal (for the seller) or the cost base of the acquisition (for the buyer). Accordingly, any capital gain or loss arising in respect of the creation or cessation of a look-through earnout right will be disregarded.

Similarly, the value of a look-through earnout right will not be taken into account in determining the capital proceeds of the disposal of the active asset for the seller, nor the cost base and reduced cost base of the asset acquired by the buyer. Instead, the value of any financial benefits subsequently provided or received under or in relation to such a right will be included in the original capital proceeds of the disposal for the related asset for the seller, or the initial cost base and reduced cost base of the asset for the buyer as at the date of the original acquisition.

However, where a taxpayer subsequently disposes of an asset that is subject to an ongoing look-through earnout right before their obligations or entitlements in relation to financial benefits under the right are exhausted, their cost base for the asset may change as a result of any subsequent financial benefits they pay or receive. In this situation, the taxpayer will need to adjust the capital gain or loss on that subsequent disposal.

Choices and timing

This treatment of earnout rights results in the amount of a capital gain or loss changing because of financial benefits provided or received in subsequent income years. A number of special rules are required to ensure that this does not disadvantage taxpayers or impose unnecessary compliance and administrative costs.

First, as the financial benefits may be provided up to five years after the end of the income year in which the CGT event occurred, the period of review for the income year in which the CGT event occurred may have passed before the taxpayer has provided or received the financial benefits requiring the amendment. Therefore, the period of review will be extended for all of a taxpayer’s tax-related liabilities that can be affected by the character of the look-through earnout right to the later of (a) the period of review that would normally apply and (b) four years after the end of the final income year in which financial benefits could be provided.

Importantly, this period of review extension includes liabilities in subsequent years for taxes other than income tax. For example, the small business CGT retirement concessions provide, broadly, that certain contributions to superannuation linked to capital gains arising from the sale of business assets do not count towards non-concessional superannuation contribution caps. If the amount of the relevant gain for a taxpayer changes as a result of the financial benefits provided under an earnout right, the extended amendment period would apply to the assessment of the taxpayer’s non-concessional contributions.

This extension also applies to a taxpayer’s right to object where they are dissatisfied with an assessment.

Second, where the amount of a gain or loss may substantially vary from the amount of the gain or loss identified in the year in an uncertain way, the amendments will permit taxpayers to amend a choice made previously in relation to a capital gain or loss that can be affected by financial benefits provided under a look-through earnout right. However, the decision to vary a choice must be made by the time the taxpayer is required to lodge a tax return for the period in which the financial benefits under the look-through earnout right is received.

Third, in relation to the imposition of the general interest charge (GIC), taxpayers will not be subject to interest on any shortfall that arises as a consequence of financial benefits provided or received under a look-through earnout right, as long as they request an amendment to their relevant income tax assessment within the lodgment period for their income return for the year in which the financial benefit was provided or received. (Likewise, the Commissioner will not be liable to pay interest on any tax overpayment that arises as a result of financial benefits provided or received.)

However, the taxpayer will be subject to the shortfall interest charge (SIC) to the extent they have accessed a concession for which they are ultimately not eligible due to these financial benefits.

Finally, in cases where entities dispose of assets and receive a look-through earnout right that initially results in a capital loss position, such capital losses will be “temporarily disregarded” until and to the extent that they become certain. Once such losses become certain, they will be available from the year in which the loss was originally incurred, not when the amount became certain.

Access to CGT concessions

The changes to the treatment of look-through earnout rights are only intended to affect a taxpayer’s entitlement to CGT concessions insofar as this may occur because of the underlying disposal value, including all of the amounts provided for and under the earnout right. Taxpayers may reconsider any choices and their entitlement to concessions in light of subsequent receipts and payments to ensure that the resulting gain, loss or cost base reflects any concessions that are available.

Likewise, in some cases a taxpayer may not initially be in a position to elect that a concession apply to a CGT event. Alternatively, a taxpayer may be concerned that anticipated future financial benefits in respect of a look-through earnout right may mean they are not eligible for a concession after they have taken irrevocable actions based on this concession (such as making contributions to superannuation). In these cases, the taxpayer can now simply wait until it is clear whether they will be finally eligible for the concession before making any choice.

However, while the receipt of financial benefits under a look-through earnout right may allow the taxpayer to remake choices, it does not entitle them to undo actions they have taken in that period. For example, if a taxpayer has made contributions to superannuation in order to access a concession, they cannot withdraw these contributions if the concession is no longer available.

Further, the CGT small business concessions can require action within a fixed period of time. For example, the CGT small business retirement exemption generally requires taxpayers to contribute a relevant amount to their superannuation when the proceeds are received or at the time the choice is made for an individual, or within seven days for a trust or company. In such cases the period for accessing such concessions will be extended appropriately.

Access to CGT concessions: the MNAV test

The maximum net asset value (MNAV) test has been revised. When working out the value of an entity’s CGT assets “just before the time of a CGT event”, taxpayers should be able to elect not to include the value of any look-through earnout right the entity may hold, but instead to take into account any financial benefits that the entity may have provided or received under the look-through earnout right after that time. The election to use this method may only be made once no further financial benefits can be provided under the look-through earnout right.

Foreign resident CGT withholding and look-through earnout rights

Where relevant taxable Australian property under the foreign resident CGT withholding rules (contained in the Act) is an active asset of a business, it may also potentially be subject to a look-through earnout right as part of the sale. As a result, if a transaction to which foreign resident capital gains withholding applies involves a look-through earnout right, the taxpayer does not need to include any amount referable to the future financial benefits under the look-through earnout right.

Instead, if the original transaction required a purchaser to pay an amount to the Commissioner, the purchaser must also pay an amount with respect to any financial benefits provided under look-through earnout rights when the benefits are received. However, the purchaser must still pay 10% of the financial benefit to the Commissioner.

This obligation to withhold with respect to the original transaction may be relieved where there are changes in the residency circumstances of the person who ultimately receives the financial benefit. Alternatively, the financial benefit may be directed towards a person who was not a part of the original transaction. In either case, the question of whether the person receiving the benefit is a relevant foreign resident is reassessed at the time the financial benefit is provided or received.

Date of effect

These amendments apply from 24 April 2015. However, taxpayers who have made statements to the Commissioner and undertaken other actions in reasonable anticipation of announcements made about the amendments in the 2010–2011 Budget are protected against the Commissioner applying the law in a way that is inconsistent with what they have anticipated.

Source: Tax and Superannuation Laws Amendment (2015 Measures No 6) Bill 2015, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;page=0;query=BillId%3Ar5585%20Recstruct%3Abillhome.

ATO administrative treatment: non-qualifying rights

The ATO says that taxpayers who cannot satisfy the requirements of the law enacted on 25 February 2016 will need to apply the treatment detailed in Draft Taxation Ruling TR 2007/D10.

Source: ATO website, “Non-qualifying rights”, 1 March 2016, https://www.ato.gov.au/General/New-legislation/In-detail/Direct-taxes/Income-tax-on-capital-gains/CGT–Look-through-treatment-for-earnout-rights/?page=2#Administrative_treatment.

 

CURRENCY:

This issue of Client Alert takes into account all developments up to and including 17 February 2016.

Tax relief for small businesses that restructure on the way

The Tax Laws Amendment (Small Business Restructure Rollover) Bill 2016 was introduced in the House of Representatives on 4 February 2016. It amends the ITAA 1997 by inserting new Subdiv 328-G, to provide an optional rollover for small business owners who change the legal structure of their business on the transfer of business assets from one entity to another. The effect of the rollover is that the tax cost/s of the transferred asset/s roll over from the transferor to the transferee.

The rollover is in addition to existing rollovers where an individual, trustee, or partner transfers assets to, or creates assets in, a company in the course of incorporating their business.

Eligibility

The optional rollover will be available where a small business entity transfers an active asset of the business to another small business entity as part of a genuine business restructure, without changing the ultimate economic ownership of the asset.

The rollover will apply to gains and losses arising from the transfer of active assets that are CGT assets, depreciating assets, trading stock or revenue assets between entities as part of a genuine restructure of an ongoing business.

Genuine restructure

The transfer of the asset/s must be part of a “genuine” restructure of an ongoing business (as opposed to “inappropriately tax-driven schemes”).

Whether a restructure is “genuine” is a question of fact determined with regard to all of the facts and circumstances. Relevant matters include whether it is a bona fide commercial arrangement undertaken to enhance business efficiency, whether the transferred assets continue to be used in the business and whether it is a preliminary step to facilitate the economic realisation of assets.

Also, a “safe harbour” rule provides that the restructure is “genuine” for three years after the rollover if:

• there is no change in the ultimate economic ownership of any of the business’s significant assets (other than trading stock);
• those significant assets continue to be active assets; and
• there is no significant or material use of the significant assets for private purposes.

Entities that can access the rollover

To be eligible for the rollover, each party to the transfer must be either:

• a “small business entity” for the income year during which the transfer occurred;
• an entity that has an “affiliate” that is a small business entity for that income year;
• “connected” with an entity that is a small business entity for that income year; or
• a partner in a partnership that is a small business entity for that income year.

(“Small business entity” takes its usual meaning, as defined in Subdiv 328-C.)

Likewise, the rollover applies to “passively held” assets of a small business that may, for example, be held in an entity other than the one carrying on the business (eg an “affiliate” or a “connected entity” that is a small business entity).

Ultimate economic ownership

The transfer must not have the effect of changing the ultimate economic ownership of transferred assets in a material way. The ultimate economic owners of an asset are the individuals who, directly or indirectly, beneficially own an asset. Ultimate economic ownership of an asset can only be held by natural persons. Therefore, where a company, partnership or fixed trust owns an asset, the natural person owners of the interests in these interposed entities will ultimately benefit economically from that asset.

If more than one individual is an ultimate economic owner of an asset, there is an additional requirement that each of the individuals’ shares of that ultimate economic ownership be materially unchanged, maintaining the same proportionate ownership in the asset.

Discretionary trusts may be able to meet the requirements for ultimate economic ownership “on their facts” (eg where there is no practical change in which individuals economically benefit from the assets before and after the rollover, there will not have been a change in ultimate economic ownership on the facts).

Otherwise, a discretionary trust may meet an alternative ultimate economic ownership test, whereby every individual who had ultimate economic ownership of the transferred asset before the transfer and every individual who has ultimate economic ownership of the transferred asset after the transfer must be members of the family group relating to the family trust.

Eligible assets

Where a party to the transfer is itself a small business entity, the asset being transferred must be a CGT asset that is an “active asset” (as defined in s 152-40).

Where a party to the transaction is an affiliate or connected entity with a small business entity, the asset must be an active asset that satisfies s 152-10(1A), which, among other things, requires that the relevant small business entity carries on business in relation to the asset.

Where a party to the transaction is not a small business entity, but is a partner in a partnership that is a small business entity, the asset must be an active asset and an interest in the asset of the partnership.

Other

Both the transferor and the transferee of the assets must be residents of Australia. The transferor and transferee must both choose to apply the rollover. The rollover will not apply to a transfer to or from an exempt entity or complying superannuation entity.

Effect of the rollover

The rollover provides tax neutral consequences for a transfer by “switching off” the application of the existing income tax law – but only for the purpose of the transfer, and not for the purposes of GST, FBT or stamp duty.

The rollover provides that the transfer takes place for the asset’s “rollover cost” – which is the transferor’s cost of the asset for income tax purposes, such that the transfer would result in no gain or loss for the transferor. The transferee will be taken to have acquired each asset for an amount equal to the transferor’s cost just before the transfer.

CGT assets

For the transfer of a CGT asset, the tax law will apply under the rollover as if the asset had been transferred for an amount equal to the cost base of the asset. Further, pre-CGT assets transferred under the rollover will retain their pre-CGT status in the hands of the transferee.

Note that in respect of the availability of the CGT discount to the transferee, the time period for eligibility for the CGT discount will recommence from the time of the transfer.

Trading stock

Assets that are trading stock of the transferor will be held as trading stock by the transferee. The transferee will inherit the transferor’s cost and other attributes of the assets as the transferor just before the transfer.

To the extent that the asset is trading stock of the transferor, the rollover cost will be the cost of the item for the transferor at the time of the transfer; or if the transferor held the item as trading stock at the start of the income year, the value of the item for the transferor at that time.

Revenue assets

The rollover cost is the amount that would result in the transferor not making a profit or loss on the transfer. The transferee will inherit the same cost attributes as the transferor just before the transfer.

Depreciating assets

Rollover relief will be available for depreciating assets (under s 40-340) where a rollover under the new measures would be available in relation to the asset if the asset were not a depreciating asset. As a result, the transferee can deduct the decline in value of the depreciating asset using the same method and effective life as the transferor used.

Membership interests

Where membership interests are issued in consideration for the transfer of an asset/s, the cost base of those new membership interests is worked out based on the sum of the rollover costs and adjustable values of the rollover assets, less any liabilities that the transferee undertakes to discharge in respect of those assets, divided by the number of new membership interests.

The rollover does not require that market value consideration, or any consideration, be given in exchange for the transferred assets.

However, an integrity rule ensures that a capital loss on any direct or indirect membership interest in the transferor or transferee that is made subsequent to the rollover will be disregarded, except to the extent that the taxpayer can demonstrate that the loss is reasonably attributable to something other than the rollover transaction. This rule also applies where a transfer of value from an entity results in the creation of tax losses on later disposal of the membership interests.

Note that restructuring to obtain timing advantages or other significant tax benefits in relation to membership interests and other interests in the entities involved in the transaction may, in particular cases, mean that the “genuine” restructure requirement is failed.

Small business concessions

Where the transferor has previously chosen to apply a small business rollover under Subdiv 152-E, and a replacement asset is transferred under this rollover, the transferee is taken to have made the choice for the purposes of CGT events J2, J5 and J6.

For the purpose of determining eligibility for the 15-year CGT exemption for small businesses, the transferee will be taken as having acquired the asset when the transferor acquired it.

Date of effect

The amendments apply to:

• transfers of depreciating assets, where the balancing adjustment event arising from the transfer occurs on or after 1 July 2016;
• transfers of trading stock or revenue assets, where the transfer occurs on or after 1 July 2016; and
• transfers of CGT assets, where the CGT event arising from the transfer occurs on or after 1 July 2016.

Source: Tax Laws Amendment (Small Business Restructure Rollover) Bill 2016, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;page=0;query=BillId%3Ar5606%20Recstruct%3Abillhome, still before the Senate at the time of writing.

Trust ABNs to be cancelled if no longer carrying on business

The ATO has advised that the Registrar of the Australian Business Register (ABR) will begin cancelling the ABNs of approximately 220,000 trusts, where there is evidence they are no longer carrying on an enterprise.

Trust ABNs will be cancelled in February 2016, where information available indicates that for the last two years the trust has not lodged BASs and/or trust income tax returns. Exclusions to these ABN cancellations apply for trusts that are registered with the Australian Charities and Not-for-profits Commission or are non-reporting members of a GST or income tax group.

The ATO says entities will receive a letter if their ABN has been cancelled. The letter will include the reason for the cancellation, and a phone number to ring to have the ABN reinstated immediately if the entity does not agree with the decision. The ATO also notes that if an entity’s ABN is cancelled and neither the entity nor its tax representative receives a letter, it could mean the entity’s contact details are not up to date on its ABN record.

Source: ATO website, “Cancellation of trust ABNs”, 22 January 2016, https://www.ato.gov.au/Tax-professionals/Newsroom/Your-practice/Cancellation-of-trust-ABNs/.

Car expense deduction changes

The Government has simplified car expense deductions for individuals from 1 July 2015.

Prior to 1 July 2015, there were four methods for claiming car expenses:

• cents per kilometre – capped at 5,000 km;
• logbook – unlimited kilometres;
• 12% of original value; and
• one-third of actual expenses.

To simplify the rules, from 1 July 2015 the Government has abolished the 12% of original value and one-third of actual expenses methods. The cents per kilometre method (with the existing 5,000 km cap) and the logbook method (with unlimited kilometres) remain.

The cents per kilometre method has been simplified to use a standard rate of 66 cents per kilometre for the 2015–2016 income year, rather than a rate based on the engine size of the car. The Commissioner of Taxation will set the rate for future income years.

Withholding tax for car allowances

Employers should be aware that the ATO has set the approved pay as you go (PAYG) withholding rate for cents per kilometre car allowances at 66 cents per kilometre from 1 July 2015.

Employers should withhold from any amount above 66 cents for all future payments of a car allowance. Failure to do so may result in employees having a tax liability when they lodge their tax returns.

Employees who have been paid a car allowance from 1 July 2015 at a rate higher than the new approved amount should consider whether they need to increase their withholding to avoid any tax liability at the end of the year.

Source: ATO, “Car expense substantiation methods simplified”, 17 December 2015, https://www.ato.gov.au/general/new-legislation/in-detail/direct-taxes/income-tax-for-individuals/car-expense-substantiation-methods-simplified/.

Travellers with student debts need to update contact details

Australians with a Higher Education Loan Programme (HELP) debt and/or a Trade Support Loans (TSL) debt who are moving overseas for longer than six months need to provide the ATO with their overseas contact details within seven days of leaving the country. This requirement follows recent legislative changes.

ATO Assistant Commissioner Graham Whyte said that affected people can provide the ATO with international contact details using online services (eg an ATO account linked to myGov).

“Don’t worry if you don’t know your new international residential address yet. Just provide us with your best contact address while you’re away, like your parents’, and update your contact details when you’re settled. The most important thing is that you’re still able to receive correspondence from us while you’re overseas”, Mr Whyte said.

From 1 July 2017, anyone living overseas and earning above the minimum repayment threshold will be required to make loan repayments, just as they would if they were living in Australia.

“We will be in touch closer to the time with more information about how to report income and make loan repayments”, Mr Whyte said. “For now, all travellers with a HELP and/or TSL debt need to do is update their details and factor in potentially making repayments from 1 July 2017”, he added.

Further information is available on the ATO website at https://www.ato.gov.au/Individuals/Study-and-training-support-loans/Overseas-repayments/.

Source: ATO, “Square away with the ATO before you ship off overseas”, 9 February 2016, https://www.ato.gov.au/Media-centre/Media-releases/Square-away-with-the-ATO-before-you-ship-off-overseas/.

Small business tax concession refused as threshold test failed

The Federal Court has confirmed that the face value of a debt of $1.1 million owed to a taxpayer had to be taken into account, under the maximum net asset value test, for the purposes of determining if the taxpayer qualified for the CGT small business concessions. This was despite the taxpayer’s claim that the debt was statute-barred from recovery under relevant state legislation and therefore had a nil value. As a result of the Court’s confirmation, the debt amount was included in the test and the taxpayer failed to qualify for the concessions.

Background

The taxpayer was both a beneficiary and the trustee of a family trust that held units in a unit trust which operated a finance broking business. The unit trust sold the business in the 2008 income year for a capital gain of $500,000, to which the taxpayer was entitled. The taxpayer argued that in determining whether the “maximum net asset value” (MNAV) test was satisfied, a debt of $1.1 million owed to the family trust (a connected entity), resulting from a loan it made to him, had a nil value and was not to be taken into account under the MNAV test. He argued this on the basis that the debt was “statute-barred” from recovery under the six-year statute of limitations in s 35(a) or 42(1) of the Limitation of Actions Act 1936 (SA) (the Act).

However, in Re Breakwell and FCT [2015] AATA 628, the AAT found that this was not the case, on the basis that the debt had been legally acknowledged by the trustee of the family trust as being recoverable (by way of signing the relevant balance sheets) and was legally in existence at the relevant time. Therefore, the AAT found that the face value of the debt was to be included in the MNAV test, and that the taxpayer failed to qualify for the concessions.

Before the Federal Court, the taxpayer first argued that the AAT wrongly determined the debt was recoverable and had wrongly found there was no acknowledgement contained in writing signed by the taxpayer or by his agent, as required by s 42(1) of the Act, to find that the debt was still in existence and not statute-barred from recovery. Alternatively, the taxpayer argued if this issue was not an appealable question of law, then the signing of the balance sheet could not amount to an acknowledgement of a debt for the purposes of s 42 of the Act, as it was at best an acknowledgement of an asset, and not of “a debt owing”.

Decision

In dismissing the taxpayer’s appeal and confirming that the amount of $1.1 million was to be included in the MNAV test (and therefore that the taxpayer failed to qualify for the concessions), the Federal Court first found that the statutory time limit in s 35(a) of the Act did not, by itself, have the effect of extinguishing the trust’s claim in contract for repayment of the loan after six years. The Court found that while the section may “bar the remedy”, it did not bar “the cause of action”. Instead, the Court said s 35(a) (and similar legislation) acted to create a defence which could be raised by a debtor or defendant in an action against them and which, moreover, could be waived by a debtor or defendant.

The Court also found that s 48 of the Act allowed a court to extend such a limitation period – and that it was possible that an arm’s-length trustee in this case would seek such an extension. The Court noted that it would be difficult to see how the taxpayer in this case, as a debtor-beneficiary of the trust, would raise the statute of limitation defence when, in his capacity as trustee of the trust, he also had fiduciary duties to act in the best interest of the trust.

Accordingly, the Court ruled that the family trust’s claim against the taxpayer could not be regarded as statute-barred under s 35(a) of the Act (nor under s 38 of the Act) and that the debt owed to it could not be regarded as having no value. In addition, the Court found that the present case was an action by a trust to recover trust property, and that there was no limitation period in this case in accordance with s 32(1) of the Act.

Breakwell v FCT [2015] FCA 1471, Federal Court, White J, 22 December 2015, http://www.austlii.edu.au/au/cases/cth/FCA/2015/1471.html.

“Wildly excessive” tax deduction claims refused

A professional sales commission agent has been largely unsuccessful before the AAT in claiming deductions for work-related expenses, including home office expenses, various grocery items and overtime meal allowances.

Background

The taxpayer was a professional sales commission agent. His employer did not provide him with a dedicated office or workspace. In his 2010 to 2012 income tax returns, he claimed large deductions for home office expenses and work-related travel. Originally, the taxpayer claimed that 31.6% of his house (including the family living room, which he called the “meeting room”, and a roof storage area) was being used solely for work purposes.

The taxpayer was audited on his 2010 tax return (where he claimed over $97,000 worth of expenses to reduce his taxable income to $21,000). When the matter came before the AAT in 2014, it disallowed numerous home office deductions and rejected his claim that his living room was a “meeting room”, but allowed a home office percentage of 11.7% (see Re Ogden and FCT [2014] AATA 385).

The current case concerned the taxpayer’s deduction claims in his 2011 and 2012 tax returns. His original claims (which changed throughout the course of the audit and AAT proceeding), totalled over $63,000 for 2010–2011 and over $53,000 for 2011–2012, which represented at least 30% of his employment income. The Commissioner disallowed various deductions and applied a 25% shortfall penalty for failing to take reasonable care.

When the matter came before the AAT, the claims that were still in dispute included the amount of the home office expenses, overtime meal allowances, “staff and client amenities” (including toilet paper, pocket tissues, Bega Stringers Cheese, Tiny Teddies and Weight Watchers Lamingtons), “business meals” for his accountant, a desk in his son’s bedroom, sunscreen, sunglasses and $383 on a pair of RM Williams rubber-soled shoes, which the taxpayer claimed prevented his computer being damaged by static electricity. The taxpayer also claimed expenses spent on a Dora the Explorer pencil case, heart and star shaped stickers, depreciation on an outdoor patio setting and a $5,388 payment to his seven-year-old son for “secretarial assistance” (a claim which the taxpayer abandoned during the proceedings).

Decision

The AAT found that the taxpayer’s home office claims were “wildly excessive”, and that the taxpayer and his representatives failed to critically analyse how these claims helped produce the taxpayer’s assessable income. In particular, the AAT said that the claim that the family living room was being used solely for work meetings “should never have been made”, noting that the taxpayer’s approach had been to find “some relationship, no matter how remote” to his work in order to claim deductions. In relation to an initial claim for 31.6% of his home loan interest expenses, the AAT said it was “difficult to understand how a registered tax agent could allow such a claim to be made”. The AAT found that the taxpayer’s home office represented around 1.8% of the family home.

The AAT rejected everything claimed under “staff and client amenities”, as it considered the products were overwhelmingly consumed by the taxpayer’s family, thereby making the claims “outrageous and utterly unacceptable”. The claimed meal allowances were also rejected in their entirety. Regarding expenses on the rubber-soled shoes, the AAT commented that it appeared to be yet another example of the taxpayer’s evidence ranging from “the exaggerated to the implausible”, and accordingly rejected the claim. The AAT did not seek to disturb heating and lighting expenses that the Commissioner had allowed, but noted that the taxpayer was “fortunate” to have been allowed these.

Considering the various deductions claimed, the AAT said a 25% administrative penalty appeared “somewhat generous” to the taxpayer. The AAT gave leave to the Commissioner to reconsider the penalty issues, and to consider whether to apply a 20% uplift, given the numerous statements made by the taxpayer and how they changed over time. It also noted that different levels of culpability may apply to different statements.

Re Ogden and FCT [2016] AATA 32, AAT, File Nos 2014/5943; 2014/5957; 2014/6763; 2014/6764, Frost DP, 29 January 2016, www.austlii.edu.au/au/cases/cth/AATA/2016/32.html.

GST credits not available for payments on behalf of super funds

The ATO has issued GST Determination GSTD 2016/1 on whether employers can claim input tax credits for expenses paid on behalf of superannuation funds. The Determination notes that an employer may, for “administrative convenience”, pay expenses on behalf of a fund, with the payment being reclassified as a superannuation contribution in the employer’s accounts. However, the ATO’s preferred approach is for all superannuation fund expenses to be paid directly out of the fund itself, and for superannuation contributions to be made directly to the fund.

GSTD 2016/1 provides that an employer is not entitled to an input tax credit if a superannuation fund makes an acquisition and the employer pays the expense on the fund’s behalf. This is because the supply is made to the fund and not to the employer. However, the ATO notes that the fund may be entitled to claim a reduced input tax credit under the financial supply rules (Div 70 of the GST Act), provided the requirements of those rules are satisfied.

GSTD 2016/1 includes an example (reproduced below) where a superannuation fund engages a solicitor to provide legal advice and the employer sponsor pays the legal fees. As the supply (the legal advice) is provided to the fund, the employer cannot claim an input tax credit for the payment.

Example

Lazy Days Pty Ltd is the employer sponsor of the Lazy Days Superannuation Fund. Lazy Days Pty Ltd is registered for GST and employs 15 staff. The Lazy Days Superannuation Fund is registered for GST purposes.

The Lazy Days Superannuation Fund engaged a legal firm to provide advice about its activities. Lazy Days Pty Ltd pays the legal fees associated with this advice.

Lazy Days Pty Ltd is not entitled to an input tax credit as a result of paying for the advice provided to the Lazy Days Superannuation Fund. This is because the supply of the advice was made by the legal firm to the Lazy Days Superannuation Fund, which is a separate entity from Lazy Days Pty Ltd. Lazy Days Pty Ltd has not acquired anything for the payment and therefore has not satisfied the requirements in s 11-5 for making a creditable acquisition.

The Lazy Days Superannuation Fund may be entitled to a reduced input tax credit in relation to the payment if the requirements in Div 70 are otherwise satisfied.

The GST Determination applies both on and after its date of issue (27 January 2016).

MT 2005/1 and GSTA TPP 003 withdrawn

The GST Determination was not previously released as a draft. It replaces the previous ATO rulings on the topic, MT 2005/1 and GSTA TPP 003, both of which were withdrawn on and with effect from 27 January 2016. The Commissioner’s views in GSTD 2016/1 are the same as those expressed in the withdrawn Miscellaneous Tax Ruling and GST Advice.

Source: ATO, GST Determination GSTD 2016/1, https://www.ato.gov.au/law/view/pdf/pbr/gstd2016-001.pdf.

CURRENCY:

This issue of Client Alert takes into account all developments up to and including 13 January 2016.

Single Touch Payroll pilot and tax offset proposed

On 21 December 2015, the Assistant Treasurer released details concerning the Government’s proposed Single Touch Payroll (STP) to streamline business tax and superannuation reporting. “Employers currently manually report PAYG withholdings to the ATO,” Ms O’Dwyer said. “Under the new STP this information will be automatically reported to the ATO through Standard Business Reporting (SBR) software.”

Ms O’Dwyer said reporting of superannuation contributions will also be automatically sent to the ATO when payments are made to super funds. In addition, employers will also have the option to pay their PAYG withholding at the same time they pay their staff. In relation to individuals commencing employment, they will have the option of completing their TFN declaration and Superannuation Standard Choice forms using myGov or through their employer’s business management software.

As noted in the MYEFO 2015–2016, the ATO will be conducting a pilot in the first half of 2017 focusing on small businesses. From 1 July 2017, all businesses will be able to commence STP reporting, with the option to make voluntary payments. In addition, the ATO will transition employers with 20 or more employees to STP. From 1 July 2018, employers with 20 or more employees will be required to use STP enabled software for reporting to the ATO. The Assistant Treasurer said the Government will make a decision on timing for rolling out STP reporting for employers with less than 20 employees after the pilot is completed.

To assist small businesses with a turnover of less than $2 million, the Government will offer a $100 non-refundable tax offset for SBR-enabled software. This offset is proposed to apply from 1 July 2017 and for software purchases or subscriptions made in the 2017–2018 financial year only.

STP welcome, but cashflow concerns an issue

While supportive of the STP initiative, some commentators have highlighted the policy objective needs to take into account the fact that many SMEs struggle with cashflow. The ATO has been undertaking consultation on the design and development of the STP and has been urged to better understand the business impact on SMEs.

Real time pay day reporting to the ATO has a number of public benefits. It gives the ATO an earlier intervention signal to contact struggling businesses to see what can be done to get things back on track. Reducing current levels of aged tax and superannuation debt is another aspect of the ATO’s thinking. Employees will also benefit by being alerted if their tax and superannuation entitlements are not being paid.

However, a significant concern is the proposal for PAYG withheld and super to be paid by businesses more frequently, on the same day employees get paid. The current law allows super to be paid into funds quarterly, and SMEs enjoy a time lag for remitting PAYG withholding to the ATO.

Source: Assistant Treasurer’s media release, 21 December 2015 <http://kmo.ministers.treasury.gov.au/media-release/042-2015/>; MYEFO 2015–2016 <http://budget.gov.au/2015-16/content/myefo/html/index.htm>

GST simplified accounting methods for small food retailers

Many small food retailers buy and sell products that are taxable as well as products that are GST-free. Others buy taxable and GST-free products and sell only taxable products. Depending on the point-of-sale equipment they use, accurately identifying and recording GST-free sales separately from those that are taxable can be difficult, which makes accounting for GST complicated.

The ATO has updated a publication setting out simplified GST accounting methods for food retailers. The publication is designed to help taxpayers work out the amount of GST they are liable to pay at the end of each tax period. There are five methods (see summary below) and the ATO says taxpayers need to choose which method is the best for their business. The ATO adds that taxpayers cannot use the averaging involved in the methods to set prices (prices are to be set in line with the Australian Competition and Consumer Commission guidelines).

The publication covers eligibility conditions to use a SAM, the difference between the five SAMs, how to choose a SAM, how to notify the ATO on which SAM is elected, record-keeping requirements, and how to complete an activity statement.

Summary of the SAMs

Method	Business norms	Stock purchases	Snapshot	Sales percentage	Purchases snapshot
Turnover threshold	SAM turnover of $2 million or less	SAM turnover of $2 million or less	SAM turnover of $2 million or less	GST turnover of $2 million or less	GST turnover of $2 million or less
How to estimate GST-free sales and/or purchases	Apply standard percentages to sales and purchases.	Take a sample of purchases and use this sample.	Take a snapshot of sales and purchases and use this.	Work out what percentage of GST-free sales is made in a tax period and apply this to purchases.	Take a snapshot of purchases and use this to calculate GST credits.

 

The ATO has prepared the following FAQs:

Q. Which SAM should I choose?

You should choose the method you are eligible to use that best suits your business.

Q. If my projected turnover is more than the relevant turnover threshold before the end of the first 12 months, will I need to use a full accounting method from that point?

No. If you meet the turnover threshold requirements when you choose your SAM, you can continue using it for the remaining tax periods in that first 12 months. The threshold is a SAM turnover of $2 million or less for the business norms, snapshot and stock purchases methods, and a GST turnover of $2 million or less for the sales percentage and purchases snapshot methods.

However, you will not be eligible to use a SAM in tax periods that start after the first 12 months.

Q. If I buy adequate point-of-sale equipment part way through the year, do I continue to use the SAM for the rest of the year?

No. Once you have installed point-of-sale equipment that you are satisfied accurately identifies and records GST-free sales separately from taxable sales, you are no longer eligible to use the SAM you have chosen.

You must stop using this method from the beginning of the tax period after the day you purchased the point-of-sale equipment.

Note: This rule does not apply to the sales percentage method or the purchases snapshot method.

Q. With the business norms method, why are the GST-free rates higher for hot bread shops than convenience stores?

The business norms percentages are based on the average values for each industry.

The percentages have been developed in consultation with a wide range of industry groups, including shop owners, industry representatives and peak bodies. Every industry has different characteristics and trading, so it makes sense they have different levels of GST-free stock purchases and sales.

Q. Can I just estimate my GST-free sales but fully account for my purchases?

Only if you use either the stock purchases method or the snapshot method.

If you use the business norms method, you have to use the business norms percentages for your business type to calculate both your GST-free sales and your GST-free purchases. You cannot estimate the GST-free sales under the sales percentage and purchases snapshot methods.

Source: ATO publication, “Simplified GST accounting methods for food retailers”, 26 November 2015 <https://www.ato.gov.au/business/gst/in-detail/your-industry/food/simplified-gst-accounting-methods-for-food-retailers/>

Government’s Innovation Agenda contains tax incentives

The Government on 7 December 2015 released its National Innovation and Science Agenda. The Government said Australia is falling behind on measures of commercialisation and collaboration, and through the new Agenda, the Government will invest $1.1 billion to incentivise innovation and entrepreneurship, reward risk taking, and promote science, maths and computing in schools by focusing on four priority areas:

1. culture and capital, to help businesses embrace risk and incentivise early stage investment in startups;
2. collaboration, to increase the level of engagement between businesses, universities and the research sector to commercialise ideas and solve problems;
3. talent and skills; and
4. government as an exemplar.

Tax and related incentives

A suite of new tax and business incentive measures are included under the Agenda, including:

• new tax breaks for early stage investors in innovative startups. Investors will receive a 20% non-refundable tax offset based on the amount of their investment, as well as a 10-year CGT exemption for investments held for three years. The scheme is expected to begin during 2016 as soon as amendments to the enabling legislation are passed into law;
• introducing a 10% non-refundable tax offset for capital invested in new Early Stage Venture Capital Limited Partnerships (ESVCLPs), and increasing the cap on committed capital from $100 million to $200 million for new ESVCLPs. The new arrangements are expected to begin during 2016 as soon as amendments to the enabling legislation are passed into law;
• relaxing the “same business test” that denies tax losses if a company changes its business activities, and introducing a more flexible “predominantly similar business test”. This will allow a startup to bring in an equity partner and secure new business opportunities without worrying about tax penalties. The “predominantly similar business test” will apply to losses made in the current and future income years; current tests will continue to apply to existing losses;
• removing rules that limit depreciation deductions for some intangible assets (like patents) to a statutory life and instead allowing them (ie provide an option) to be depreciated over their economic life as occurs for other assets. The changes will apply to assets acquired from 1 July 2016; and
• limiting the requirement for disclosure documents given to employees under an employee share scheme (ESS) to be made available to the public. The Assistant Treasurer said that, currently, offer documents to employees have to be lodged with ASIC and could result in the release of commercially sensitive information. The Government plans to limit the requirement for these documents to be made publicly available. This is designed to allow otherwise non-disclosing companies to offer shares to their employees without having to reveal commercially sensitive information to competitors. Legislation is expected to be introduced in the first half of 2016.

The Government said it will also reform insolvency laws, for example:

• reducing the default bankruptcy period of three years to one year;
• introducing a “safe harbour” for directors from personal liability for insolvent trading; and
• banning “ipso facto” contractual clauses.

Source: Government’s National Innovation & Science Agenda <www.innovation.gov.au>

ATO data matching real property transactions

The ATO has gazetted a notice specifying that it will acquire details of real property transactions for the period 20 September 1985 to 30 June 2017 from various State Revenue offices and tenancies boards. Information to be obtained will include: rental bond number of identifier for rental bond; unique identifier for the landlord; full name of the landlord; full address of the landlord; period of lease; date of property transfer; property sale contract date; settlement date; and valuation details.

The ATO expects that around 31 million records for each year will be obtained. Based on current data holdings, the ATO estimates that records relating to 11.3 million individuals will be matched. The purpose of this data matching program is to ensure that taxpayers are correctly meeting taxation and other obligations administered by the ATO in relation to their dealings with real property. These obligations include registration, lodgement, reporting and payment responsibilities.

Note that the ATO intends to continue this data matching program from 2017. In the 2013–2014 Federal Budget, the Government announced that it would legislate to make the reporting of real property transfers to the ATO mandatory in the future. The current Government confirmed that it would proceed with this proposal. Amending legislation to implement the proposal is contained within the Tax and Superannuation Laws Amendment (2015 Measures No 5) Act 2015.

Source: Commonwealth Gazette, Notice of Data Matching Program – Real Property Transactions, 8 December 2015 <https://www.comlaw.gov.au/Details/C2015G02019>; ATO, Real property transactions 1985-2017 data matching program protocol, 7 December 2015 <https://www.ato.gov.au/General/Gen/Real-property-transactions-data-matching-program-protocol/>

Tax treatment of earnout rights on business sale

The Tax and Superannuation Laws Amendment (2015 Measures No 6) Bill 2015 was introduced in the House of Reps on 3 December 2015. It proposes to amend the ITAA 1997 to change the CGT treatment of the sale and purchase of businesses involving certain earnout rights. As a result, capital gains and losses arising in respect of look-through earnout rights will be disregarded and, instead, payments received or paid under the earnout arrangements will affect the capital proceeds and cost base of the underlying asset or assets to which the earnout arrangement relates when they are received or paid (as the case may be).

The Bill also amends the rules relating to amendments to assessments, interest charges, recognition of capital losses and access to CGT concessions to ensure the new treatment provides taxpayers with outcomes consistent with those that would have arisen had the value of all of the financial benefits under the earnout right been included in the capital proceeds from the disposal of the underlying asset for the seller and the cost base of the underlying asset for the buyer at the time of the disposal.

Changes from draft Bill

The Bill is essentially the same as the original draft legislation. However, note the following:

• the original four-year period in which financial benefits must be provided in order to qualify as an “eligible” earnout arrangement has been extended to five years;
• it was unclear under the draft legislation how the measures would interact with the rules for accessing the CGT small business concession via the maximum net asset value test and, in particular, whether this would be determined only at the time of disposal without regard to any future potential future financial benefits to be provided. However, under the Bill, taxpayers will be able to elect to take into account any future financial benefits for this purpose; and
• the Bill explains in detail how the earnout measures will interact with the new “foreign resident CGT withholding” measures (also introduced in the Bill).

Look-through earnout rights

A look-through earnout right is a right to future financial benefits which are not reasonably ascertainable at the time the right is created. The right must be created under an arrangement involving the disposal of a CGT asset that is an “active asset” of the seller, and the financial benefits under the right must be contingent on and reasonably related to the future economic performance of the asset (or a related business). As a result, a look-through earnout right must be created as part of an arrangement for a disposal of the business or its assets (ie the disposal must cause CGT event A1 to happen).

Note also a right will also be a look-through earnout right if it is a right to receive financial benefits provided in exchange for ending a right that is a look-through earnout right.

For these purposes, an “active asset” is an asset of the taxpayer that is used in the business of the taxpayer or a “connected” or “affiliated” entity. Note also that the definition of active asset allows interests in foreign entities to be active assets for the purpose of this measure.

A membership interest in an Australian resident company or trust will also be an active asset if at least 80% of the assets of the company or trust (by value) are active assets. But note that special rules apply in this case so that if, for example, the sole asset of Company A is a share in Company B, which itself only holds a share in Company C, the character of interests in both A and B will depend on the character of the assets of C.

Further, in determining if such interests are active assets, the amendments provide that an eligible share or an interest in a trust is treated as an active asset in the hands of an entity for the purpose of determining if a look-through earnout right exists. For these purposes, to be “an eligible share or interest” the entity holding the share or interest must either:

(a) if they are an individual – be a CGT concession stakeholder in relation to the company or trust; or

(b) if they are not an individual – own a sufficient share of the business that they would be a CGT concession stakeholder were they an individual.

In addition, the trust or company must carry on a business and have carried on a business for at least one prior income year and for the immediately preceding income year, at least 80% of the assessable income of the trust or company must have come from the carrying on a business (and not been derived as an annuity, interest, rent, royalties or foreign exchange gains, or derived from or in relation to financial instruments). Importantly, this test allows taxpayers to avoid the need to value the assets of the trust or company and, instead, only look at how the trust or company has earned its income over the past income year.

Note that look-through earnout rights must be created as part of arrangements entered into on an arm’s-length basis. Note also that the look-through measures are not intended to provide tax benefits to temporary transfers (such as a loan or the granting of a lease), ongoing business relationships (such as the purchase of an ownership interest) or complex financing arrangements where there is no final disposal of the underlying asset.

Contingent on the future economic performance of the asset

For a right to be a look-through earnout right, future financial benefits provided under the right must be linked to the future economic performance of the asset or a business in which the asset is used and not reasonably ascertainable at the time the right is created. Where the measure of performance relates to a business, there must be a reasonable belief at the time of the disposal that the asset will actually be used in this business. In the case of the entity disposing of the asset, this will be based on what is reasonable given their knowledge of the intention of the other party.

Note that whether a particular measure appropriately identifies economic performance will depend on the context of the business or asset in question. Measures that may be appropriate include both financial measures such as the profit, sales or turnover of the business (or the business in which the asset is used) and non-financial measures such as the number of clients retained. However, any measure adopted must be reasonable in the particular context. Note also that for a right to be a look-through earnout right, the value of the benefits must also reasonably relate to the performance.

Five-year payment limitation

For a right to be a look-through earnout right, the right must not require financial benefits to be provided more than five years after the end of the income year in which the relevant CGT event occurs in relation to the disposal of the relevant active asset. This ensures concessions for look-through earnout rights are not available to long-term profit sharing arrangements and avoids providing an excessive and distorting benefit to look-through earnout rights.

But note that this requirement is not breached simply because one party or another may be late in providing a financial benefit under the look-through right, even if the other party tolerates this lateness. It will also not be breached if the agreement includes provisions that allow for a delay in payment contingent on events, such as a dispute over the terms of the agreement being subject to a binding arbitration process. However, the relevant contingency must be outside the control of either party.

However, the five-year requirement will be breached if the agreement includes an option for the parties to extend the period over which financial benefits are provided or to enter into a new agreement providing for the continuation of substantially similar financial benefit. Further, if the parties vary the right to extend the period over which financial benefits are provided beyond five years or enter into a new agreement to create an equivalent right to further future financial benefits then the right will be taken to have never been a look-through earnout right.

Note that in the draft legislation, this period was four years only.

Consequences of a right being a look-through earnout right

If a right is a look-through earnout right:

(a) the value of the right is disregarded for the purposes of CGT; and

(b) the value of any financial benefits made or received under the right is included in either the capital proceeds arising from the disposal (for the seller) or the cost base of the acquisition (for the buyer).

Accordingly, any capital gain or loss arising in respect of the creation or cessation of a look-through earnout right will be disregarded.

Similarly, the value of a look-through earnout right will not be taken into account in determining the capital proceeds of the disposal of the active asset for the seller nor the cost base and reduced cost base of the asset acquired by the buyer. Instead, the value of any financial benefits subsequently provided or received under or in relation to such a right will be included in the original capital proceeds of the disposal for the related asset for the seller, or the initial cost base and reduced cost base of the asset for the buyer as at the date of the original acquisition.

But note that where a taxpayer subsequently disposes of an asset that is subject to an ongoing look-through earnout right before their obligations or entitlements in relation to financial benefits under the right are exhausted, their cost base for the asset may change as a result of any subsequent financial benefits they pay or receive. In this situation, the taxpayer will need to adjust the capital gain or loss on that subsequent disposal.

Choices and timing

This treatment of earnout rights results in the amount of a capital gain or loss changing as a result of financial benefits provided or received in subsequent income years. As a result, a number of special rules are required to ensure that this does not disadvantage taxpayers or impose unnecessary compliance and administrative costs.

First, as the financial benefits may be provided up to five years after the end of the income year in which the CGT event occurred, the period of review for the income year in which the CGT event occurred may have passed before the taxpayer has provided or received the financial benefits requiring the amendment. As a result, the period of review will be extended for all of a taxpayer’s tax-related liabilities that can be affected by the character of the look-through earnout right to the later of:

(a) the period of review that would normally apply; and

(b) four years after the end of the final income year in which financial benefits could be provided.

Note this extension of the period of review includes liabilities in subsequent years for taxes other than income tax. For example, the small business CGT retirement concessions provide, broadly, that certain contributions to superannuation linked to capital gains arising from the sale of business asset are not counted towards non-concessional superannuation contribution caps. If the amount of the relevant gain for a taxpayer changes as a result of the financial benefits provided under an earnout right, the extended amendment period would apply to the assessment of the taxpayer’s non-concessional contributions.

Note also this extension also applies to a taxpayer’s right to object where they are dissatisfied with an assessment.

Secondly, where the amount of a gain or loss may substantially vary from the amount of the gain or loss identified in the year in a way that is uncertain, the amendments will permit taxpayers to amend a choice made previously where the choice relates to a capital gain or loss that can be affected by financial benefits provided under a look-through earnout right. However, the decision to vary a choice must be made by the time the taxpayer is required to lodge a tax return for the period in which the financial benefits under the look-through earnout right is received.

Thirdly, in relation to the imposition of the general interest charge (GIC), taxpayers will not be subject to interest on any shortfall that arises as a consequence of financial benefits provided or received under a look-through earnout right, as long as the taxpayer requests an amendment to their relevant income tax assessment within the period they must lodge their income return for the income year in which the financial benefit was provided or received. (Likewise, the Commissioner will not be liable to pay interest on any overpayment of tax that arises as a result of financial benefits provided or received.)

But note that to the extent a taxpayer has accessed a concession for which they are ultimately not eligible due to these financial benefits, the taxpayer will be subject to the shortfall interest charge (SIC).

Finally, in cases where entities dispose of assets and receive a look-through earnout right that initially results in a capital loss position, such capital losses will be “temporarily disregarded” until and to the extent that they become certain. However, once such losses become certain, they will be available from the year in which the loss was originally incurred, not when the amount became certain.

Access to CGT concessions

The changes to the treatment of look-through earnout rights are only intended to affect a taxpayer’s entitlement to CGT concessions insofar as this may occur as a result of the value of the underlying disposal now including all of the amounts provided for and under the earnout right. As a result, taxpayers may reconsider any choices and their entitlement to concessions in light of subsequent receipts and payments to ensure that the resulting gain, loss or cost base reflects any concessions that are available.

Likewise, in some cases, a taxpayer may not initially be in a position to elect that a concession to apply to a CGT event. Alternatively, a taxpayer may be concerned that anticipated future financial benefits in respect of a look-through earnout right may mean that they cease to be eligible for a concession to apply after they have taken irrevocable actions based on this concession (such as making contributions to superannuation). In these cases, as the taxpayer can remake choices they can simply wait until it is clear whether or not they will be finally eligible for the concession before making any choice.

But note that while the receipt of financial benefits under a look-through earnout right may allow the taxpayer to remake choices, it does not entitle the taxpayer to undo the actions they have taken in that period. For example, if a taxpayer has made contributions to superannuation in order to access a concession, they cannot withdraw these contributions now they are no longer available.

Further, the CGT small business concessions can also require things to be done within a fixed period of time (eg the CGT small business retirement exemption generally require a taxpayer to contribute a relevant amount to their superannuation when the proceeds are received or at the time the choice is made for an individual, or seven days after these times for a trust or company). In such cases the period for accessing such concessions will be extended appropriately.

Access to CGT concessions – the MNAV test

The maximum net asset value (MNAV) test will be revised to provide that when working out the value of an entity’s CGT assets “just before the time of a CGT event”, taxpayers should be able to elect not to include the value of any look-through earnout right the entity may hold, but instead take into account any financial benefits that the entity may have provided or received under the look-through earnout right after that time. The election to use this method may only be made once no further financial benefits can be provided under the look-through earnout right.

Note that, under the draft Bill, it was not clear how this issue would be treated but it appeared that the MNAV test would be determined solely at the time the earnout arrangement was entered into, without any regard to payment of future benefits.

Foreign resident CGT withholding and look-through earnout rights

Where relevant taxable Australian property under the proposed foreign resident CGT withholding rules (contained in the Bill) is an active asset of a business, it may also potentially be subject to a look-through earnout right as part of the sale. As a result, if a transaction to which foreign resident capital gains withholding applies involves a look-through earnout right, the taxpayer does not need to include any amount referable to the future financial benefits under the look-through earnout right.

Instead, if the original transaction required a purchaser to pay an amount to the Commissioner, the purchaser must also pay an amount to the Commissioner with respect to any financial benefits provided under look-through earnout rights at such time as the benefit are received. However, the purchaser must still pay 10% of the financial benefit to the Commissioner.

Note that this obligation to withhold with respect to the original transaction may be relieved where there is a change in circumstances relating to the residency of the person ultimately receiving the financial benefit. Alternatively, the financial benefit may be directed towards a person who was not a part of the original transaction. In either case, the question, of whether the person receiving the benefit is a relevant foreign resident, is reassessed at the time the financial benefit is provided or received.

Date of effect

These amendments will apply from 24 April 2015. However, taxpayers that have made statements to the Commissioner undertaken other actions in reasonable anticipation of announcements made about the amendments in the 2010–2011 Budget are protected against the Commissioner applying the law in a way that is inconsistent with what they have anticipated.

ATO administrative treatment

The ATO has released details of its administrative treatment pending the formal enactment of legislation. Further details are available on the ATO website at: https://www.ato.gov.au/General/New-legislation/In-detail/Direct-taxes/Income-tax-on-capital-gains/CGT–Look-through-treatment-for-earnout-rights/?page=2#Administrative_treatment

Source: Tax and Superannuation Laws Amendment (2015 Measures No 6) Bill 2015, before the House of Reps at the time of writing, <http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;page=0;query=BillId%3Ar5585%20Recstruct%3Abillhome>

Are your super saving goals on track?

The new calendar year is a good time to conduct a superannuation health check and set some new goals to help boost superannuation savings. Although there have been no seismic shifts in the superannuation landscape of late, it may be prudent to reacquaint yourself with the rules. The following are some considerations.

• Check employer super contributions – for the 2015–2016 financial year, the super guarantee rate is 9.5%. The rate will stay at 9.5% until 1 July 2021 in which it will start to gradually increase to 12% by 1 July 2025. Note that Norfolk Island has been brought into the superannuation guarantee fold. A transitional rate starting at 1% will apply from 1 July 2016 for the 2016–2017 financial year.
• Monitor the concessional contributions caps – the general concessional contributions cap is $30,000 for the 2015–2016 financial year (same as for 2014–2015). A higher concessional contributions cap of $35,000 applies for 2015–2016 for people aged 59 years or over on 30 June 2013. For the 2015–2016 financial year, this temporary concessional cap of $35,000 also applies for those aged 49 years or over on 30 June 2014 and for those aged 49 years or over on 30 June 2015. This temporary $35,000 concessional cap (not indexed) will cease when the general cap reaches $35,000 through indexation (expected to be 1 July 2018).
• Monitor non-concessional contributions cap – this has increased to $180,000 (or $540,000 every three years for those under age 65) for the 2015–2016 financial year (same as for 2014–2015).
• Consider salary sacrificing superannuation – individuals may want to inquire about salary sacrificing superannuation or consider reviewing an existing arrangement with their employer.
• Check the government co-contribution – a 50% matching applies whereby the Government will pay a co-contribution up to a maximum of $500 for a $1,000 eligible personal contribution for individuals with total incomes up to $35,454 for 2015–2016 (phasing down for incomes up to $50,454).
• Check superannuation savings – in addition to becoming more familiar with superannuation, individuals may also want to protect their superannuation from identity crime. For example, they may want to change passwords for accounts that can be viewed online.
• Look for small lost super accounts – the threshold below which small lost super accounts will be required to be transferred to the Commissioner of Taxation has increased. The account balance threshold has gone from $2,000 to $4,000 from 31 December 2015, and will go from $4,000 to $6,000 from 31 December 2016.
• Consolidate multiple superannuation fund accounts – consider consolidating multiple superannuation fund accounts. There may be legitimate reasons for keeping multiple accounts. Now is the time to reassess those reasons.
• Think about life expectancy – people are generally healthier and living longer than previous generations. Retired men can expect to live to 86, retired women to 90.

The list above is not exhaustive.

Practitioners may want to also review the ATO’s Key superannuation rates and thresholds publication for other considerations. The publication (last updated 18 September 2015) is available on the ATO website at: https://www.ato.gov.au/Rates/Key-superannuation-rates-and-thresholds/

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CURRENCY: This issue of Client Alert takes into account all developments up to and including 17 November 2015.

Tax negotiation limited to known debt amounts

Two corporate taxpayers have unsuccessfully applied to the Federal Court to have statutory demands set aside.

Facts

Two individuals, Mr C and Ms B, carried on property development activities in Western Australia through several entities, including the taxpayer companies. Mr C alleged that, in April 2014, he reached a “global deal” with the ATO to bring to an end debt recovery action against the companies if adequate security was provided. He claimed the ATO agreed not to issue statutory demands while objection and review proceedings were in process. However, he said the ATO then sought demands that were contrary to this oral agreement, including $8 million security from a related trust. He also claimed that ATO officers repeatedly threatened to issue statutory demands “to coerce implementation of the global deal and to obtain other benefits”.

Following the April 2014 meeting, the taxpayers entered into deeds of agreement with the ATO. In September 2014, after the taxpayers allegedly defaulted on the deeds, the Deputy Commissioner served statutory demands on the taxpayers pursuant to s 459E of the Corporations Act 2001. The taxpayers applied to the Federal Court to set aside the statutory demands under s 459J(1)(b) of the Corporations Act 2001 (which gives the Court the power to set aside a statutory demand “for some other reason”). The taxpayers claimed that the statutory demands were unconscionable and were not issued for a proper statutory purpose.

Decision

The Federal Court dismissed the taxpayers’ applications, finding that they failed to establish a proper basis for setting aside the statutory demands.

In the Court’s view, the taxpayers presented no probative evidence to support their allegation that the statutory demands were issued for any purpose other than to set in train winding-up proceedings against the companies for their unpaid taxation debts. The Court said it did not doubt that Mr C held a “genuine subjective belief” that he and the ATO had entered into a binding legal agreement that went beyond the terms of the deeds of agreement subsequently executed. However, the Court considered that Mr C’s subjective belief was not supported by either objective documentary evidence or by the evidence of the ATO representatives who attended the meeting, which it preferred.

The Court also found that there was no probative evidence to support the taxpayers’ claim that the statutory demands were issued for the improper purpose of coercing other entities to pledge security in respect of their disputed liabilities. The Court accepted the ATO’s evidence that the negotiations involved only “established debts” reflected in a spreadsheet that was used at the meeting and did not include further tax liabilities, including those of the trust.

Source: MNWA Pty Ltd v DCT (No 2) [2015] FCA 1128, www.austlii.edu.au/au/cases/cth/FCA/2015/1128.html

CGT roll-over for small business restructures on the way

The Government has released exposure draft legislation that proposes to provide roll-over relief for small businesses that change their legal structure. The proposed measures were announced in the 2015–2016 Federal Budget, and will apply to the transfers of assets occurring on or after 1 July 2016.

The proposed measures will insert new Subdiv 328-G into the ITAA 1997 to provide an optional roll-over where a small business entity transfers a business asset to another small business entity without changing the ultimate economic ownership of the asset. The roll-over can also apply to affiliates or entities connected with the small business entity for assets they hold that are used by the small business entity.

The roll-over will apply to gains and losses arising from the transfer of CGT assets, depreciating assets, trading stock or revenue assets between entities as part of a small business restructure. Discretionary trusts may be able to access the roll-over if the assets continue to be held for the benefit of the same family group.

Note that the proposed new roll-over is in addition to roll-overs currently available where a sole trader or partner in a partnership transfers assets to, or creates assets in, a company in the course of a business restructure.

Eligibility for the roll-over

The two types of entities that may be eligible for the roll-over are:

• small business entities in the income year in which the transfer takes place that satisfy the $6 million maximum net asset value (MNAV) test in s 152-10 or the $2 million “small business entity” turnover test in Subdiv 328-C. In this case, the entity may access the roll-over for CGT assets that are assets of the business carried on by the entity; and
• an affiliate of, or connected with, a small business entity for the income year that satisfies the MNAV test at the time of the transfer. These entities may access the roll-over in relation to CGT assets that satisfy requirements relating to passively held assets that are used by the small business entity in their business.

Effect of the roll-over

Under the proposed measures, the tax cost/s of the transferred asset or assets is rolled over from the entity that transferred the asset or assets (the transferor) to the entity to which the asset or assets are transferred (the transferee). This will be achieved by providing that:

• the transferor is taken to have received an amount which would result in them making neither a gain or loss under the transfer; and
• the transferee is taken to have acquired each asset for the amount that equals the transferor’s tax cost for the asset just before the transfer.

However, different costs apply to an asset depending on the asset, as follows:

• for CGT assets, the relevant cost for income tax purposes is the cost base of the asset, while pre-CGT assets will retain their pre-CGT status in the hands of the transferee. In relation to discount capital gains, a transferee receiving an asset under the roll-over is treated as having acquired the CGT asset either when the entity that owned the CGT asset before the roll-over acquired it or, if the asset has been involved in an unbroken series of roll-overs, when the entity that owned it before the first roll-over in the series acquired it;
• for trading stock, the roll-over cost for income tax purposes is the cost of the item for the transferor at the time of the transfer or, if the transferor held the item as trading stock at the start of the income year, the value of the item for the transferor at that time. In addition, the transferee will inherit the same cost attributes of the asset as the transferor just before the transfer. This is to ensure that any deductions claimed by the transferor up to the date of the transfer are taken into account;
• for revenue assets – to the extent that an asset is being assessed as a revenue asset – the roll-over cost is the amount that would result in the transferor not making a profit or loss on the transfer and the transferee will inherit the same cost attributes as the transferor just before the transfer; and
• for depreciating assets, the roll-over relief will be available for depreciating assets under s 40-340 to prevent an amount being included in or deducted from the transferor’s assessable income because of a balancing adjustment event. Instead, the transferee can deduct the decline in value of the depreciating asset of the depreciating asset using the same method and effective life (or remaining effective life as relevant) as the transferor was using.

Requirements for roll-over

The roll-over will be available where:

• the transferor transfers a CGT asset or all of its business assets that are CGT assets, depreciating assets, trading stock and revenue assets;
• the transferor chooses to apply the roll-over;
• the transaction is a restructure that has the effect of changing the type of any or all of the entities and/or the number of entities through which all or part of the business is operated;
• no consideration is provided for the transfer (as the ultimate economic ownership of any entity to which assets are transferred under the roll-over will not change);
• the transferor, transferee and the ultimate owners of the assets transferred are Australian residents;
• the transfer does not have the effect of changing the ultimate economic ownership of the asset or assets transferred; and
• the transferee is not an exempt entity or a complying superannuation entity, or none of the transferees are exempt entities or complying superannuation entities.

The roll-over also applies where a small business transfers assets as part of a restructure which either:

• changes the type of any or all of the entities through which all or part of the business is operated; or
• changes the number of the entities through which all or part of the business is operated.

Note also that each of the transferor, the transferee and the ultimate economic owners of the assets must be a resident of Australia in terms of the relevant residency test that applies to them (eg in relation to companies or trusts).

In relation to the requirement that the transaction “must not change the ultimate economic ownership of the transferred asset or assets”, the ultimate economic owners of an asset are the individuals who, directly or indirectly, beneficially own an asset. If there is more than one such individual, those individuals’ share of that ultimate economic ownership is unchanged, maintaining proportionate ownership in the asset. Where the transferor (or transferee) is an individual – such as a sole trader – the transferor (or transferee) will also be the ultimate economic owner of the asset transferred.

In the case of discretionary trusts, a transaction will be taken as not having the effect of changing the ultimate economic ownership of assets where:

• immediately before or after the transaction took effect, the asset was included in the property of a discretionary trust (a “non-fixed trust”) that was a family trust; and
• every individual who, just before or just after the transfer took effect, had ultimate economic ownership of the asset was a member of the family group of that family trust.

In this regard, the draft Explanatory Memorandum prefaces this rule by stating: “… discretionary trusts that have made a family trust election are administered for the benefit of a specified family group. For the purposes of the roll-over members of this group will be the ultimate economic owners of the business assets.”

Consequences for membership interests

Under the proposed roll-over, the cost base of membership interests in the transferor (eg shares in a company, units in a unit trust), if any, is reduced to the extent of any “transfer of value” from the transferor (but not below zero). This ensures that an owner of membership interests in a transferor entity cannot realise an artificial loss on disposal of those interests, following the reduction of value of the entity from the assets transferred.

For these purposes, the transfer of value is worked out by multiplying the “asset value” by the “membership interest percentage” for each asset transferred. The asset value is the market value of the asset transferred at the time of the transfer. The membership interest percentage is the proportion of the owner’s membership interests in the transferor, expressed as a percentage of all of the membership interests in the transferor. This ensures that the cost base of each owner’s membership interests is reduced in proportion to their membership interests in the transferor.

But note that this rule has no operation where no membership interests in the transferor exist, including where the transferor is a sole trader.

Date of effect

The proposed amendments will apply to transfers of assets occurring on or after 1 July 2016.

Comments

Comments are due by 4 December 2015.

Source: Treasury, “Small Business Restructure Rollover”, exposure draft legislation, 5 November 2015, www.treasury.gov.au/ConsultationsandReviews/Consultations/2015/Small-Business-restructure-rollover

ATO starts issuing “certainty” letters

The ATO announced on 6 October 2015 that it will commence a “certainty letter” initiative through which it will send letters to approximately 500,000 taxpayers informing them that their 2015 tax returns are finalised.

 

The aim of this initiative is to provide certainty to taxpayers who have met their tax obligations for the 2015 income year. Only select taxpayers who meet the following criteria can expect to receive the letters. Broadly these taxpayers have:

• straightforward tax affairs;
• a good lodgment and compliance history;
• lodged their income tax return through myTax, e-tax or a tax agent;
• taxable income of less than $180,000;
• derived income only from salary and wages, allowances, Australian Government allowances, interest and dividends; and
• claimed deductions for work-related expenses, interest, dividend deductions, gifts, donations or the cost of managing their tax affairs.

As this is only a pilot program, not all taxpayers who meet the above criteria will receive a certainty letter. It is noted that the ATO considers taxpayers with straightforward affairs as those with no links to other entities. This means that certain taxpayers (such as beneficiaries of trusts) would not expect to receive a “certainty letter”. Regardless of whether the letter is received, all taxpayers are still required to maintain accurate and detailed tax records for their 2015 tax returns.

The ATO has indicated that it will use sophisticated data-matching techniques and third party sources (eg banks and other financial institutions) to carry out routine checks on the information disclosed in the 2015 tax returns prior to issuing the letters. Accordingly, taxpayers who receive certainty letters should not be subject to further review or audit for their 2015 tax returns, unless the ATO later becomes aware that there may have been fraud or evasion. In such circumstances, the certainty letters will be void.

This pilot program will cover the 2015 tax return only and therefore does not preclude the ATO from undertaking an audit on earlier income tax returns. Furthermore, the certainty letters do not prevent taxpayers from amending their 2015 returns. However, once a return is amended, comfort letters may be reconsidered. The ATO will also still retain the discretion to amend returns in cases of fraud or evasion. As such, while certainty letters may provide some comfort as to taxpayers’ standing with the ATO, they do not provide 100% certainty in all situations.

Take home messages

Whilst this initiative is welcomed because of its aim to provide taxpayers with greater certainty in relation to their tax obligations, this is only a pilot program and not every taxpayer who meets the criteria will receive a letter. Those who receive the letter will have “peace of mind” in relation to their 2015 tax obligations. On the other hand, taxpayers who do not receive a certainty letter should not worry as this does not mean that there is necessarily anything wrong with their tax return.

It remains to be seen how the letters will operate in practice, particularly if the Commissioner will change his position on the issued letter when taxpayers amend their 2015 tax return or if the Commissioner relies on the concept of fraud or evasion to invalidate the certainty letter. It would appear that, depending on the success of the pilot program, this initiative could potentially become part of the ATO compliance program.

Source: ATO media release, “Half a million taxpayers to get the A-OK”, 6 October 2015, https://www.ato.gov.au/Media-centre/Articles/Half-a-million-taxpayers-to-get-the-A-OK/

Government rejects SMSF borrowing ban recommendation

Direct borrowings by superannuation funds via limited recourse borrowing arrangements (LRBAs) are safe (at least for the next three years), following the Government’s decision to reject the Murray Financial System Inquiry (FSI) recommendation to ban or restrict LRBAs. This is welcome news for trustees of self-managed superannuation funds (SMSFs) who have faced uncertainty about the future of such borrowing arrangements which have become popular for investments in direct property and shares.

The final report of the Murray Inquiry, previously released in December 2014, included a recommendation to restore the general prohibition on direct borrowings by superannuation funds by removing the current exception for LRBAs in s 67A of the Superannuation Industry (Supervision) Act 1993 on a prospective basis.

In releasing its response on 20 October 2015, the Government said that it did not agree with this recommendation. While the Government noted that there are “anecdotal concerns” about LRBAs, it said the data is not sufficient to justify a significant policy intervention at this time.

However, the Government said it will commission the Council of Financial Regulators and the ATO to monitor leverage and risk in the superannuation system and report back to Government after three years. According to the Government, this timing will allow recent improvements in ATO data collection to wash through the system. The agencies’ analysis will be used to inform any consideration of whether changes to the borrowing rules might be appropriate at a future date.

So what are the SMSF borrowing stats?

The most recent ATO statistics estimated that SMSFs held $15.6 billion in LRBAs as at June 2015 (ie only 2.6% of the total SMSF assets of $590 billion): see the ATO’s Self-managed super fund statistical report – June 2015, released in September 2015. The ATO notes that these figures are estimates based on SMSF tax return data. Changes were made to the 2012–2013 SMSF tax return to improve reporting on LRBAs. As more data becomes available from subsequent tax returns, the ATO expects to be able to provide more accurate estimates.

Note also that ATO statistics (see the ATO’s SMSF statistical overview for 2012–2013, released in December 2014) provided a more detailed breakdown of LRBA assets by value. It suggested that the bulk of LRBAs were invested in commercial real property (47%), followed by residential property (42%) and Australian shares (5%). However, that 2012–2013 data was based on less reliable data (prior to the 2012–2013 changes to the SMSF tax return).

Proceed with caution!

Despite the Government’s “green light” for LRBAs, a decision to establish an SMSF and invest in property using an LRBA is not one to be taken lightly. A borrowing arrangement is only permitted where it complies with the strict rules under superannuation law – namely, the Superannuation Industry (Supervision) Act 1993. This means that each step in the process of establishing an SMSF, putting in place an LRBA (and the property investment itself), must strictly comply with the full range of superannuation rules.

Before committing to purchase a property via an LRBA, an SMSF trustee will need to employ a methodical approach (generally with the assistance of a licensed professional) to ensure compliance with the tax and superannuation borrowing rules. To this end, it would be prudent to identify any possible LRBA issues that should be considered before committing to purchase a property via an SMSF.

Source: Government response to the Financial System Inquiry, “Improving Australia’s Financial System”, 20 October 2015, www.treasury.gov.au/~/link.aspx?_id=194A2D59EB6F4F9A8B09ACC059978F47&_z=z

Car expenses and FBT concessions on entertainment

The Tax and Superannuation Laws Amendment (2015 Measures No 5) Bill 2015 has been introduced. The Bill proposes the following amendments:

Work-related car expenses

The Bill proposes to repeal the 12% of original value method and the one-third of actual expenses method. That is, subdivs 28-D and 28-E of the ITAA 1936 will be repealed. Taxpayers will continue to be able to choose to apply the cents-per-kilometre method (for up to 5,000 business kilometres travelled), or the logbook method, depending on which method in their view best captures the actual running costs of their vehicle.

According to the Government, the changes are not expected to adversely affect the vast majority of taxpayers who it says currently use the two methods that will be retained. Citing ATO figures, the Government says the removal of the two methods is expected to affect only 2% of taxpayers.

The Bill also proposes to provide a streamlined process for calculating the cents-per-kilometre method by providing a single rate of deduction. That is, the current three rates based on vehicle engine capacity will be replaced with a single rate of deduction. In the 2015–2016 income year, the rate will be set at 66 cents per kilometre. This rate is said to represent the average per-kilometre running cost of the top five selling cars (a mix of small to large cars) in Australia.

The Commissioner will be provided with the power to set the cents-per-kilometre rate for later years via legislative instrument. When setting the rate of deduction, the Commissioner is to take into account the average running costs of a car. The Commissioner should consider the fixed and variable costs of operating a vehicle including such matters as fuel costs, servicing costs and the cost of replacing tyres, registration and insurance expenses. The Commissioner, at his or her discretion, may determine more than one rate if he or she wishes to set different rates for different classes of car in later income years. The Commissioner is to also publish the rate at the beginning of the income year. This will enable taxpayers to make a more informed choice between the logbook method or the cents-per-kilometre method, depending on which method they feel better captures the running costs of their vehicle.

The changes may affect the way untaxed allowances are calculated. For example, if an employer currently pays their employee an allowance in respect of their motor vehicle use and the allowance is calculated using one of the methods which will be repealed by this Bill, the employer will need to update the method of calculating the allowance. Further, if the rate of the allowance paid by an employer is higher than 66 cents per kilometre, then the employee will need to report this allowance in their tax return. The employee will be entitled to claim a deduction for the amount, up to 66 cents per kilometre, and be subject to tax on amounts exceeding 66 cents per kilometre. Alternatively, an employee may utilise the logbook method to claim for their work-related car expenses.

Note that there will be minor consequential amendments to the FBTAA 1986 to, among other things, remove references to the two methods to be repealed.

Date of effect

The amendments are proposed to apply to the 2015–2016 income year and later income years. Note that consequential amendments to the FBTAA 1986 will apply from 1 April 2016 and later FBT years.

FBT concessions on salary packaged entertainment benefits

The Bill proposes amendments to the FBTAA 1986 to introduce a separate grossed-up cap of $5,000 for salary sacrificed meal entertainment and entertainment facility leasing expenses for certain employees of not-for-profit organisations, and all use of these salary sacrificed benefits will become reportable.

The Bill proposes to limit the concessional treatment of salary packaged entertainment benefits by:

• removing the reporting exclusion in respect of salary packaged entertainment benefits. This ensures salary packaged meal entertainment and entertainment facility leasing expense benefits will always appear as part of an employee’s reportable fringe benefits total which is included on their payment summaries;
• removing access to elective valuation rules when valuing salary packaged entertainment benefits to prevent unintended and excessively concessional values being applied to those benefits; and
• introducing a cap on the total amount of salary packaged entertainment benefits that employees can be provided by exempt employers (covered by s 57A) and rebatable employers (covered by s 65J) that are subject to a reduced amount of FBT.

Key features of the proposed new law:

• Meal entertainment benefits and entertainment facility leasing expense benefits will be only excluded from forming part of an employee’s individual fringe benefits amount and reportable fringe benefits total where they are not provided under a salary packaging arrangement.
• An employer can elect to calculate the taxable value of all meal entertainment benefits under the 12-week register method or the 50/50 split method. However, the methods do not apply to calculate the taxable value of meal entertainment benefits not provided by an employer or where the benefit is provided under a salary packaging arrangement.
• An employer can elect to calculate the taxable value of all entertainment facility leasing expense benefits under the 50/50 split method. However, the method will not apply to calculate the taxable value of entertainment facility leasing expense benefits provided under a salary packaging arrangement.
• Employers covered under s 57A (public benevolent institutions, health promotion charities, public and not-for-profit hospitals, and public ambulance services) are exempt from FBT where the total grossed-up value of benefits provided to each employee during the FBT year is equal to, or less than, the capping threshold (the standard threshold is either $30,000 or $17,000 depending on the employee and employer). If the total grossed-up value of fringe benefits provided to an employee is more than that capping threshold, the employer will need to pay FBT on the excess.

–        However, in calculating the value of fringe benefits for the purposes of the capping threshold non-salary packaged entertainment benefits (amongst other benefits) will not be taken into account.

–        Salary packaged entertainment benefits currently excluded will be included in the standard capping threshold. If, however, the total value of fringe benefits for the purposes of the standard capping threshold is exceeded in a particular year, it is raised by the lesser of: $5,000 and the total grossed-up taxable value of salary packaged entertainment benefits.

• Rebatable employers are entitled to have their FBT liability reduced by a rebate equal to 47% of the gross FBT payable (subject to a $30,000 standard capping threshold). If the total grossed-up taxable value of fringe benefits provided to an employee is more than $30,000 a rebate cannot be claimed for the FBT liability on the excess amount.

–        However, in calculating the value of fringe benefits for the purposes of the capping threshold non-salary packaged entertainment benefits (amongst other benefits) will not be taken into account.

–        Salary packaged entertainment benefits currently excluded will be included in the standard capping threshold. If, however, the total value of fringe benefits for the purposes of the standard capping threshold is exceeded in a particular year, it is raised by the lesser of: $5,000 and the total grossed-up taxable value of salary packaged entertainment benefits.

Date of effect

The amendments are proposed to apply to the 2016–2017 FBT year and all later FBT years.

Other changes proposed

Other amendments contained in the Bill are as follows:

• Third party reporting – proposes to amend Sch 1 to the TAA to increase the information reported to the Commissioner of Taxation by a range of third parties. Under the changes, third parties will be required to report, among other things, payments of government grants, consideration provided for services to government entities, transfers of real property, etc. Date of effect: applies to some transactions that happen on or after 1 July 2016 and other transactions that happen on or after 1 July 2017. Several minor amendments are proposed to apply from Royal Assent.
• Zone Tax Offset (ZTO) – proposes to amend the ITAA 1936 to ensure that the ZTO is appropriately targeted to people genuinely living in the designated geographical zones by limiting access to the ZTO to those people whose usual place of residence is within a zone. Date of effect: applies to the 2015–2016 year of income and later years of income.

Source: Tax and Superannuation Laws Amendment (2015 Measures No 5) Bill 2015, parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;page=0;query=BillId%3Ar5536%20Recstruct%3Abillhome