ATO closely examines work-related car expenses

The ATO has announced that it will be closely examining claims for work-related car expenses in 2018 tax returns. The ATO is concerned about taxpayers making mistakes or deliberately lodging false claims in relation to work-related car expenses. Last year, around 3.75 million people made a work-related car expense claim, totalling about $8.8 billion.

ATO Assistant Commissioner Kath Anderson said that this year, the ATO will be particularly focused on people “claiming things they’re not entitled to”. This will include people claiming things like home-to-work travel or other private trips, trips they didn’t actually undertake, or expenses their employer has already paid for or reimbursed.

The ATO also uses analytics to identify claim patterns. For example, Ms Anderson said the ATO knows that around 870,000 people claim exactly 5,000 kilometres of travel under the cents-per-kilometre method each year. While the ATO says it is not suggesting that all of those claims are wrong, “it is something that we’ll be able to look into”.

The Assistant Commissioner said the best way for taxpayers to avoid mistakes is to make sure they follow “the three golden rules”, only making a car claim if:

• you paid for the expense yourself and you weren’t reimbursed;
• it’s directly related to earning your income – in other words, your employer required you to make the trips as part of your job; and
• you have a record to support your claim.

Source: www.ato.gov.au/Media-centre/Media-releases/ATO-driven-to-scrutinise-car-claims-this-tax-time/.

Data matching finds taxpayers with unnamed Swiss bank accounts

Minister for Revenue Kelly O’Dwyer has announced that more than 100 Australians have been identified as “high risk” and requiring further ATO investigation because they have links to Swiss banking relationship managers alleged to have actively promoted and facilitated tax evasion schemes.

The Minister confirmed that following a joint international investigation, the ATO and other Serious Financial Crime Taskforce (SFCT) agencies have identified 578 Australians as holding unnamed numbered accounts with a Swiss bank.

“While the ATO has found the majority of Australians identified in the data to have complied with their tax obligations, a range of immediate compliance actions are being taken against 106 taxpayers, and one is under assessment by the Government’s cross-agency Serious Financial Crime Taskforce”, Minister O’Dwyer said.

She said the ATO is investigating whether those taxpayers are using a sophisticated system of numbered accounts to conceal and transfer wealth anonymously to evade their tax obligations in Australia.

In working with the Australian Transaction Reports and Analysis Centre (AUSTRAC), the Minister said, the ATO has identified that these 106 taxpayers have had 5,000 cross-border transactions worth over $900 million in the past 10 years. The transaction amounts range from as little as $25 up to $24 million.

Ms O’Dwyer said information releases are becoming more regular, with the ATO and other government agencies receiving large data sets “reasonably regularly”. The ATO constantly receives intelligence from a range of sources which it cross-matches against existing intelligence holdings through its “smarter data” technology.

“I encourage anyone who believes they may have undeclared offshore income to come forward and contact the ATO to make a voluntary disclosure”, Minister O’Dwyer concluded. The SFCT comprises the Australian Federal Police, ATO, Attorney General’s Department, Australian Criminal Intelligence Commission, Australian Border Force, Commonwealth Department of Public Prosecutions and ASIC.

Source: http://kmo.ministers.treasury.gov.au/media-release/046-2018/.

CGT main residence exemption to disappear for non-residents

A person’s Australian tax residency status is about to assume a whole new meaning. Currently, both residents and non-residents qualify for the capital gains tax (CGT) main residence exemption, but if a Bill before Parliament becomes law, that will change.

As the law stands right now, any individual (regardless of their tax residency status) who sells their home can qualify for either:

• the full CGT main residence exemption (eg if the residence has been used as a main residence throughout the whole ownership period, whether through actual use or imputed use) – there are various main residence extension rules that impute main residence use to taxpayers even where a home was not used as a main residence in the particular time (eg the six-year absence rule); or
• the partial CGT main residence exemption (eg if the residence has been used partly as main residence and partly for income-producing purposes during the ownership period).

However, if the Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No 2) Bill 2018, currently before the Senate (having passed the House of Representatives without amendment), is enacted, any individual vendor that is a non-resident (for tax purposes) at the time they sign a contract to sell their home will no longer be able to qualify for the full or partial main residence exemption – regardless of how long the home has actually been used as a main residence. This is causing some serious concerns.

The time from when this proposed measure will apply depends on the time when the home was acquired.

When will the proposed changes apply?

The full or partial main residence exemption will not be available for non-residents signing a contract of sale to sell their homes:

• after 9 May 2017, for homes acquired after 9 May 2017; and
• after 30 June 2019, for homes acquired on or before 9 May 2017.

These measures could have a profound effect on individuals who have used their post-CGT home as a main residence for a substantial period of time, seeing the value of the property increase substantially, and then eventually sell the residence (ie sign the contract for sale) when they are non-residents for tax purposes.

For example, take an individual who bought property in 1986 (post-CGT and before 9 May 2017) and has been using the property as their main residence since that time. In July 2018, the individual leaves Australia permanently and establishes a permanent place of abode overseas. This and other facts and circumstances indicate that the individual has become a non-resident for tax purposes.

If the non-resident individual were now to sell the residence and the date the sale contract is signed is:

• on or before 30 June 2019, no tax would be payable because the non-resident individual seller would still qualify for the main residence exemption; but
• after 30 June 2019, tax would be payable because the non-resident individual seller would not qualify for the main residence exemption.

Note: The practicalities can get complicated and “messy”. From 8 May 2012 (when the CGT discount was abolished for non-residents), non-residents selling CGT assets can no longer qualify for the CGT discount. The discount is apportioned for sales after 8 May 2012 where CGT assets were acquired before 8 May 2012. So, if the non-resident signs a contract of sale (for property acquired before 9 May 2017) of the main residence after 30 June 2019, the capital gain will be taxable and only qualify for a partial CGT discount.

There are also flow-on effects for estate planning purposes (eg whether a beneficiary of a deceased estate who sells a property that was the deceased’s main residence would qualify for the main residence exemption when the beneficiary sells the house – this would depend on the residency status of both the deceased and the beneficiary).

What other issues arise from the proposed changes?

Individuals who are non-residents at the time of signing the sale contract to sell their property that has been used as both a main residence and an investment property will lose their ability to:

• apportion the main residence exemption (for a home that was first used as an investment property and then used as a main residence); or
• get a step-up in cost base (for a home that was first used as a main residence and then used as an investment property.

Concerns about the changes

While the Senate Economics Legislation Committee has recommended that the amending Bill be passed, the Committee said it received evidence expressing concerns about how the changes would affect Australians living and working overseas. Those concerns included the following:

• The Bill seeks to retrospectively remove the CGT main residence exemption for non-residents from the time the property became the taxpayer’s main residence, instead of from the time they became a non-resident.
• It has been argued that it was unreasonable to effectively penalise Australians for departing Australia for work or personal reasons by revoking their right to a CGT exemption on their family home.
• There was concern that the change could impose significant tax bills on Australian citizens and permanent residents covering periods not only when they are non-residents for tax purposes, but also when they were tax residents, paying their Australian tax obligations.
• The denial of the CGT main residence exemption for non-residents is based on their tax residency status at the time of the CGT event (ie generally when a taxpayer enters into the contract to sell the dwelling), irrespective of the use of the dwelling or the taxpayer’s residency status during the ownership period of the dwelling. The Bill retrospectively changes the application of the exemption to as far back as 20 September 1985, when the CGT provisions first commenced.
• It was submitted that there should be a difference between a “foreign resident” (ie a foreign citizen) who buys property in Australia and treats it as their main residence, but remains a non-resident for tax purposes, and an Australian citizen or permanent resident who has always lived here but has relocated overseas and becomes a non-resident, then sells the dwelling that was their home.
• It was submitted that the Bill should include grandfathering provisions to ensure that Australian citizens who were foreign residents (not Australian resident for tax purposes) when the changes were announced (on 9 May 2017) should continue to be able to access the “CGT absence concession” under current rules, regardless of where they presently reside, on eligible properties they owned on 9 May 2017.
• Australian citizens living abroad should also be able to access time apportionment so that they would continue to have access to the main residence exemption for that part of the ownership period during which they lived in the home and were resident of Australia.

Despite these concerns, and those made in submissions by several affected Australian citizens, the Committee recommended that the Bill be passed and that the Government ensure that Australians living and working overseas are aware of the changes to the CGT main residence exemption for foreign residents, and the transitional arrangements, so they can plan accordingly.

Further thoughts

At the time of writing, the proposed changes are not yet law.

However, once (and if) these proposed changes do become law, it will be very important for vendors to determine their tax residency status before they sign a contract to sell a property that would potentially qualify for the full or partial main residence exemption.

It is important to note that there will be no apportionment of the time the individual used the home as a main residence – the only test is residency status at the time of signing the contract of sale.

This “all or nothing approach” may lead to catastrophic consequences for individuals who have used their properties as main residences for an extended period of time but sell their properties (ie sign the contract to sell the properties) when they are non-residents for tax purposes.

Residential rental property travel expense deductions: ATO guidance

With effect from 1 July 2017, the Treasury Laws Amendment (Housing Tax Integrity) Act 2017 introduced s 26-31 into the Income Tax Assessment Act 1997 (ITAA 1997) to disallow deductions for non-business travel costs incurred by individuals, self managed superannuation funds (SMSFs) and “private” trusts and partnerships in relation to residential rental properties. Such expenditure is also excluded from forming part of the cost base or reduced cost base of a CGT asset.

Draft Law Companion Ruling LCR 2018/D2, issued by the ATO on 2 May 2018, seeks to supplement the Explanatory Memorandum to this legislation by providing further guidance on the following matters:

• the meaning of “residential premises”;
• the meaning of “carrying on a business” for the purposes of the business exclusion in s 26-31(1)(b), and
• the application of s 26-31 to travel expenditure that serves more than one purpose.

Residential premises

Section 26-31 of ITAA 1997 refers to the “use of residential premises as residential accommodation”. The expression “residential premises” takes its meaning from the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), which is land or a building that is occupied, or is intended to be and is capable of being occupied, as a residence or for residential accommodation. The ATO’s views on what constitutes “residential premises” for GST purposes are set out in GST Ruling GSTR 2012/5. Draft LCR 2018/D2 mirrors the GST Ruling by providing that:

• the premises must be fit for human habitation and must provide shelter and basic living facilities;
• the term of occupation or intended occupation is not determinative;
• the actual use of the premises as a residence or for residential accommodation is relevant to satisfying the first limb of the definition (concerning actual occupation);
• the second limb of the definition (concerning intended occupation) refers to premises that are designed, built or modified so as to be suitable to be occupied, and capable of being occupied, as a residence or for residential accommodation. This is demonstrated through the physical characteristics of the premises; and
• the premises may be in any of a number of forms, including single rooms or suites of rooms within larger premises.

Carrying on a business of property investing

A deduction for travel expenses is not denied under s 26-31 of ITAA if the expenditure is necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income. The draft states (as the legislation’s explanatory memorandum did) that this exclusion covers taxpayers carrying on a business of property investing or a business of providing retirement living, aged care, student accommodation or property management services. The ATO then refers to the indicia of business identified by the courts and listed in Ruling TR 97/11 (on carrying on a business of primary production).

In determining whether a business of letting residential properties is being carried out, the draft states that the following additional factors may be particularly relevant:

• the number of residential properties being rented out;
• the hours per week spent actively engaged in managing the properties;
• the skill and expertise exercised in undertaking these activities; and
• whether professional records are kept and maintained in a business-like manner.

The draft adds that it is more difficult for individuals to demonstrate that they are carrying on a business of property investing than it is for companies (which are specifically exempt from s 26-31 anyway). In the ATO’s preliminary view, “the receipt of income by an individual from the letting of property to a tenant, or multiple tenants, will not typically amount to the carrying on of a business as such activities are generally considered a form of investment rather than a business”.

Apportionment if travel expenditure serves mixed income-producing purposes

The expenditure made non-deductible by s 26-31 is a loss or outgoing “insofar as it is related to travel”. According to the draft, the use of the word “insofar” means that an apportionment is required if there are mixed income-producing purposes for the travel costs. If a single outlay of travel expenditure is incurred partly for producing income from the use of residential premises as residential accommodation and partly for other income-producing purposes (eg business or employment), the ATO expects the taxpayer to make a fair and reasonable assessment of the extent to which the amount relates to each purpose. When apportioning an indiscriminate sum, factors that may need to be taken into account include floor-area ratio, rental income and travel time spent attending to each income-producing purpose, the draft says.

Government to increase civil penalties for white-collar crime

On 4 May 2018, the Government released its response to the Senate Economics References Committee report into penalties for corporate and financial misconduct (white-collar crime), and agreed to increase the civil penalties in the Corporations Act 2001 (Corporations Act) for both individuals and bodies corporate. In doing so, the Government agreed that civil penalties for white-collar offences should be set as a multiple of the benefit gained (or loss avoided) and allow for disgorgement of profits.

The Government also released its response to the Australian Securities and Investments Commission (ASIC) Enforcement Review Taskforce report, and agreed to set the maximum civil penalties in ASIC-administered legislation at:

 

 

• for individuals, the greater of 5,000 penalty units (currently $1.05 million) or three times the value of benefits obtained (or losses avoided); and
• for corporations, the greater of 50,000 penalty units (currently $10.5 million) or three times the value of benefits obtained (or losses avoided); or 10% of annual turnover in the 12 months preceding the contravening conduct, but not more than one million penalty units ($210 million).

The Government also agreed to expand the use of ASIC infringement notices for a broader range of the financial services and managed investments provisions of the Corporations Act. In this respect, the Government accepted the recommendation of the Taskforce to include as infringement notice provisions an extra 70 provisions of the Corporations Act and the National Consumer Credit Protection Act 2009 (Credit Act). To improve the transparency of ASIC banning and disqualification orders, the Government said it is also considering the modernisation of the ASIC Business Registers.

Lowering of evidentiary standard rejected

Importantly, the Government rejected the recommendation calling for reforms that would reduce the evidentiary standards and rules for civil penalty proceedings involving white-collar offences. While the Government supported the Committee’s observation about the difficulty in proving certain civil offences, it said this does not necessarily mean evidentiary standards should be lowered. Furthermore, the Government noted the Full Federal Court’s decision in ASIC v Whitebox Trading Pty Ltd [2017] FCAFC 100, which has provided some clarity around the standard of proof and the application of “fault” elements in civil proceedings.

Source: https://treasury.gov.au/publication/p2018-282438-2/; https://treasury.gov.au/publication/p2018-282438/.

Businesses need to be ready: GST on low value goods from 1 July 2018

From 1 July 2018, GST will be imposed on the supply of goods valued at equal to or less than A$1,000 (ie low value goods) from outside of Australia to Australian consumers. Australia is the first jurisdiction in the Asia-Pacific region to move ahead with such changes and it is a fundamental shift from the current approach, which excluded supplies of low value goods into Australia by offshore merchants from the GST net. Businesses need to be ready for this change.

Summary of new regime and impacts on online merchants and operators of electronic distribution platforms

Broadly, the regime imposes a GST liability on merchants who sell goods valued at equal to or less than A$1,000 to an Australian consumer (ie a customer who is not registered for GST). This applies where the merchant delivers or facilitates the delivery of those goods into Australia. Sales made on a business-to-business (B2B) basis (ie where the recipient is registered for GST) are excluded from the regime.

The regime also provides special deeming rules where the low value goods are supplied through an electronic distribution platform (eg an online marketplace). If these deeming rules operate, the GST liability shifts to the operator of the platform rather than the merchant of the goods. Additionally, in some cases, a redeliverer may be taken to have the liability and responsibility to register and report the GST.

A registration requirement for those impacted by the regime will only arise where the taxpayer meets the annual GST turnover registration threshold of A$75,000. Further, a simplified GST registration system has been put in place that minimises the registration administrative burden through a streamlined application process via an online portal and reduced identification requirements for entities and related individuals (for instance, directors are not required to provide a certified copy of their passport). Entities registered under the simplified system are required to report and pay GST on a quarterly basis, regardless of GST turnover.

The new low value goods regime does not disturb the operation of existing provisions in relation to taxable importations, meaning that practically, the regime creates a tiered system where:

• the overseas merchant, electronic distribution platform operator or redeliverer may be liable for GST on goods valued at equal to or less than A$1,000 imported into Australia; and
• GST will continue to be payable at the border by the importer of record (typically the consumer in business-to-consumer cross-border sales) on goods valued at more than A$1,000 imported into Australia.

Preparing for the regime

In preparing for the start date of the regime (1 July 2018), those affected should consider:

• how their current systems can manage the imposition of GST – for example, whether they collect sufficient information to determine customer location, GST registration status and the amount of GST payable on a supply;
• if terms and conditions of store websites and platforms are required to be amended – for electronic distribution platform operators, this may include reviewing whether existing merchant terms and conditions allow the recovery of GST;
• compliance with Australian consumer law requirements on the display of pricing;
• the impact on customs compliance formalities and potential for double taxation – changes to the Integrated Cargo System (ICS) will mean that logistics providers and freight forwarders may begin to collect additional information on merchant and platform operator’s GST registration details and whether a consignment is being shipped to an entity exempt from the low value goods regime (eg by virtue of being a GST-registered business) to avoid the double imposition of GST at the border; and
• whether additional paid services charged by the merchant or platform operator (such as shipping and gift wrapping) are captured by regime.

ATO compliance and enforcement guidance

On 4 April 2018, the ATO released additional guidance on how it intends to approach compliance activities in relation to the low value goods regime.

In this guidance, the ATO reiterated that it may seek to impose potentially significant administrative penalties, which can be substantial for “significant global entities” (entities or groups with global turnover of greater than A$1 billion), and have several mechanisms to approach collection of GST and penalty amounts for non-compliant entities. These include:

• intercepting funds from Australia that are destined for the overseas merchant or platform operator – this may include the issuance of garnishee notices to banks and financial institutions located in Australia;
• registering the debt in a court in the overseas merchant or platform operator’s country; and
• requesting the taxation authority in the overseas merchant or platform operator’s country to recover the debt on the ATO’s behalf.

As an allowance to overseas merchants and platform operators, the guidance from the ATO provides for a concessionary penalty regime for entities that make efforts to comply with the new low value goods regime. Where an entity makes a genuine effort to comply with the regime, the ATO will not seek to impose penalties on mistakes made after the introduction of the regime (1 July 2018) for the first year of operation. Further non-imposition of penalties will be considered on a case-by-case basis after that date.

The ATO confirms that it will leverage multiple sources of information to identify non-compliant behaviour, including:

• tracking financial data and the flow of funds from purchasers to overseas suppliers – from 1 July 2017, payment system entities operating in Australia have been required to report transaction information to the ATO (the first annual report is due 1 July 2018); thus, administrative systems are already in place to capture transaction information;
• obtaining information from other jurisdictions under information-sharing agreements and tax treaties;
• online investigations to identify websites and businesses that supply goods to consumers in Australia; and
• customs data on the entry of imports into Australia – as already mentioned, the ICS data fields have been amended to capture more GST-related information on consignments entering Australia, although these fields have not yet been made mandatory.

Time to prepare

The idea for the regime has been around for some time and the Bill to implement it was introduced in February 2017, so businesses have been on notice. However, the 1 July start date is now rapidly approaching and the time to prepare is well at hand.

It is interesting to note that late last year, the Productivity Commission released a report designed to check that the legislated model is the best available collection model. The report said that while the legislated model has limitations and carries significant uncertainty about levels of compliance and the reactions of electronic distribution platforms, the Commission does not have sufficient sound evidence to recommend an alternative collection model at this stage. The Commission therefore recommended that the Government should conduct a comprehensive review of the collection of GST on low value imported goods five years after the commencement of the legislated model, unless exceptional circumstances – such as extremely low compliance, unintended impacts on consumers or significant trade policy issues – warrant an earlier review. Affected businesses will no doubt inform this review.

New Zealand proposes GST on low value goods

The New Zealand Government is proposing to levy GST on low value goods under NZ$400. A discussion document was released on 1 May 2018. Revenue Minister Stuart Nash said that currently, “foreign companies are not required to collect GST on goods under NZ$400. We are now calling for feedback on a system to register these suppliers for GST.”

Currently, New Zealand GST is collected at the border for goods valued at over NZ$400, but Customs Minister Meka Whaitiri said the Government proposes making offshore suppliers collect GST on low value goods at the moment of sale, and in turn, buyers of these goods will no longer pay New Zealand Customs tariffs or border security and biosecurity fees. This is designed to simplify compliance and administration costs at the border, she said. There would be no change to the tax treatment of goods valued above NZ$400, where the current process for collecting GST and tariff duty at the border will continue.

Offshore retailers (suppliers) would be required to register and collect GST if their total sales to New Zealand consumers exceed NZ$60,000 per annum (ie in a 12-month period). In certain circumstances, marketplaces and redeliverers may also be required to register. The offshore supplier registration is the same threshold that applies to domestic businesses and to offshore suppliers of cross-border services and intangibles (ie ebooks, digital downloads and software), which has applied from 1 October 2016.

This new regime is also broadly in line with recent international developments. For example, Australia has legislated rules to apply GST on all imported goods valued at or below A$1,000 from 1 July 2018. The European Commission announced in December 2016 that European Union Member States would use a variant of an offshore supplier registration system to collect value-added tax (VAT) on low value imported goods from outside the European Union by 2021.

The changes to New Zealand’s GST system would take effect from 1 October 2019. Comments on the discussion document are due by 29 June 2018.

Source: www.beehive.govt.nz/release/gst-loophole-closed-offshore-companies.

Financial Complaints Authority takes shape

Minister for Revenue and Financial Services Kelly O’Dwyer has announced the authorisation of Australian Financial Complaints Limited to operate the new financial dispute resolution scheme – the Australian Financial Complaints Authority (AFCA) –  which will start accepting complaints from 1 November 2018. AFCA is intended to be a “one-stop shop”, having the expertise to deal with all financial disputes, including superannuation and small business lending disputes, with higher monetary limits and compensation caps.

The Minister also announced the appointment of four AFCA board members: Ms Claire Mackay, Mr Andrew Fairley, Ms Erin Turner and Mr Alan Wein. Ms O’Dwyer said one of the first priorities of the AFCA board (including its independent chair Helen Coonan) will be to consult on the AFCA terms of reference and interim funding model.

All Australian financial services (AFS) licensees, Australian credit licensees, superannuation trustees and other financial firms required to become members of AFCA by law will need to do so by 21 September 2018. AFCA will, in the coming months, outline the process for applying for membership. Until 31 October 2018, the Minister said consumers can to still lodge complaints with the existing Financial Ombudsman Service (FOS), Credit and Investments Ombudsman (CIO) and Superannuation Complaints Tribunal (SCT). The SCT will continue to operate beyond AFCA’s commencement to resolve the existing complaints it has on hand.

Source: http://kmo.ministers.treasury.gov.au/media-release/044-2018/; http://kmo.ministers.treasury.gov.au/media-release/045-2018/.

Banking Royal Commission wraps up evidence on financial advice

The Banking Royal Commission has wrapped up its two weeks of hearings focused on financial advice. Counsel Assisting, Rowena Orr SC, summed up the gruelling evidence of misconduct and conduct falling below community standards and expectations in relation to the provision of financial advice by employees and authorised representatives of financial services entities. Ms Orr said this conduct has occurred in the context of fees being charged for no service, platform fees, inappropriate advice, improper conduct, and the disciplinary regime.

In her closing address on 27 April 2018, Ms Orr set out the details of each of the case studies where Counsel Assisting considered there was evidence leaving it open for the Commissioner to find that the conduct of the relevant individuals and entities might have amounted to misconduct. Ms Orr also set out various instances where it would be open for the Commissioner to find that the individuals and entities may have breached statutory obligation under the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. Commissioner Kenneth Hayne also permitted the parties to the case studies to make written submissions (not exceeding specified page lengths) about the findings.

The Royal Commission has adjourned until 21 May 2018, when it will begin its third round of hearings with a focus on small and medium enterprises (SMEs). The Commission is expected to provide an interim report by 30 September 2018, with a final report due by 1 February 2019.

Source: https://financialservices.royalcommission.gov.au/public-hearings/Pages/default.aspx.

ATO assessments issued for excess super pension balances

The ATO has started issuing excess transfer balance (ETB) tax assessments to self managed super fund (SMSF) members, or their agents, who had previously received an ETB determination and rectified the excess.

The ATO said these paper ETB tax assessments are sent to SMSF members (or their professionals), and not to the fund. It’s then up to the member to decide how to cover the ETB liability for exceeding their $1.6 million pension transfer balance cap. The ATO said individuals can use assets from outside super, or they can access their super and either:

• take a lump sum from any accumulation interest they hold;
• make an additional commutation of their income stream; or
• make a larger than usual one-off pension payment.

As the member has prima facie met a condition of release, the ATO said it doesn’t need to issue a special release authority to super funds to allow the individual to access their super.

The ATO warned that SMSF members may receive an ETB assessment even if they didn’t receive an ETB determination. If they have rectified the excess before they were assessed for a determination, they are still liable for the ETB tax, the ATO said. However, SMSF members who were covered by the transitional rules for excesses not exceeding $100,000, and rectified in full by 31 December 2017, will not receive an ETB tax assessment.

ETB tax is due and payable 21 days after the assessment is issued. A general interest charge will accrue if any amount remains unpaid after the due date. ETB tax is calculated on the ETB earnings from when the individual started to have an ETB to when they are no longer in excess. The tax rate is set at 15% for an ETB in 2017–2018, but will increase to 30% from 1 July 2018 for second time offenders.

A person who receives an ETB assessment (or determination) should first ensure that their pension transfer balances have been correctly reported to the ATO before electing to access their super to pay their ETB liability. The ATO has also recently reported that it has identified a duplication error in its systems which can result in an incorrect total superannuation balance (TSB) being displayed on ATO Online for some people.

If a taxpayer needs to access their superannuation to pay the ETB liability, it would generally make sense to first access a lump sum from any accumulation interest they hold. Subject to the individual’s circumstances, making an additional commutation of an existing income stream would generally be better than taking a larger than usual one-off pension payment. This is because a commutation will generate a debit for the pension balance account, while an additional pension payment will not result in a credit.

As always, consider the underlying tax components if an individual has multiple superannuation interests. While super pensions and lump sums are received tax-free from age 60, there may be estate planning benefits from first accessing the interest with the largest taxable component (subject to the individual’s other circumstances). Also note that, unlike superannuation benefits released pursuant to a release authority, super benefits accessed to pay an ETB liability will be subject to the proportioning rule.

Source: www.ato.gov.au/Super/Self-managed-super-funds/In-detail/News/ATO-starts-issuing-ETB-tax-assessments/.

PERSONAL TAXATION

Personal tax rates: staged seven-year reform plan starting from 2018–2019

In the 2018–2019 Budget, the Government announced staged tax relief for low and middle income earners. The Government is proposing a major seven-year, three-step plan to reform personal income tax.

Step 1 will see a new, non-refundable low and middle income tax offset from 2018–2019 to 2021–2022, designed to provide tax relief of up to $530 for each of those years. The offset will be delivered on assessment after an individual submits their tax return, and will be in addition to the existing low income tax offset (LITO).

The low and middle income tax offset will provide a benefit of up to $200 for taxpayers with taxable income of $37,000 or less. Between $37,000 and $48,000 of taxable income, the value of the offset will increase at a rate of three cents per dollar to the maximum benefit of $530. Taxpayers with taxable incomes from $48,000 to $90,000 will be eligible for the maximum benefit of $530. From $90,001 to $125,333 of taxable income, the offset will phase out at a rate of 1.5 cents per dollar.

Step 2 will increase the top threshold of the 32.5% tax bracket from $87,000 to $90,000 from 1 July 2018. In 2022–2023, the top threshold of the 19% bracket will increase from $37,000 to $41,000 and the LITO will increase from $445 to $645. The increased LITO will be withdrawn at a rate of 6.5 cents per dollar between incomes of $37,000 and $41,000, and at a rate of 1.5 cents per dollar between incomes of $41,000 and $66,667. The top threshold of the 32.5% bracket will increase from $90,000 to $120,000 from 1 July 2022.

Step 3: from 1 July 2024, the top threshold of the 32.5% bracket will increase from $120,000 to $200,000, removing the 37% tax bracket completely. Taxpayers will pay the top marginal tax rate of 45% from taxable incomes exceeding $200,000 and the 32.5% tax bracket will apply to taxable incomes of $41,001 to $200,000.

The Government says this means that around 94% of all taxpayers are projected to face a marginal tax rate of 32.5% or less in 2024–2025.

Medicare levy, 2017–2018 tax rates unchanged

The Government had proposed to increase the Medicare levy from 2% to 2.5% from 1 July 2019, but has decided not to proceed with this. Presumably the Bills to do this, which are currently before Parliament, will be removed. In an address on 26 April 2018 to the Australian Business Economists in Sydney, the Treasurer said that, due to the improving economy and fiscal position, the Government is “now in a position to give our guarantee to Australians living with a disability and their families and carers that all planned expenditure on the National Disability Insurance Scheme (NDIS) will be able to be met in this year’s Budget and beyond without any longer having to increase the Medicare levy”.

At the same time, it has been reported that Shadow Treasurer Chris Bowen has announced that Labor will not proceed with its proposal to increase the Medicare levy by 0.5% (to 2.5%) on those earning above $87,000.

The tax rates and thresholds for the 2017–2018 year remain unchanged.

BUSINESS TAXATION

$20,000 instant asset write-off for SBEs extended by 12 months

The Government will extend the current instant asset write-off ($20,000 threshold) for small business entities (SBEs) by 12 months to 30 June 2019. This applies to businesses with aggregated annual turnover less than $10 million.

The threshold amount was due to return to $1,000 on 1 July 2018. As a result of this announcement, SBEs will be able to immediately deduct purchases of eligible depreciating assets costing less than $20,000 that are acquired between 1 July 2017 and 30 June 2019 and first used or installed ready for use by 30 June 2019 for a taxable purpose. Only a few assets are not eligible for the instant asset write-off or other simplified depreciation rules (eg horticultural plants and in-house software).

Assets valued at $20,000 or more (which cannot be immediately deducted) can continue to be placed into the general small business pool (the pool) and depreciated at 15% in the first income year and 30% each income year thereafter. The pool can also be immediately deducted if the balance is less than $20,000 over this period (including existing pools).

The current “lock out” laws for the simplified depreciation rules (which prevent small businesses from re-entering the simplified depreciation regime for five years if they opt out) will continue to be suspended until 30 June 2019.

The instant asset write-off threshold and the threshold for immediate deductibility of the balance of the pool will revert to $1,000 on 1 July 2019.

While the extension of the write-off will be welcomed, SBEs of course need to have the cash-flow to enable them to spend the $20,000 in the first place.

Anti-avoidance rules: family trust circular distributions

The Government will extend specific anti-avoidance rules that apply to other closely held trusts that engage in circular trust distributions to family trusts.

Currently, where family trusts act as beneficiaries of each other in a round-robin arrangement, a distribution can ultimately be returned to the original trustee in a way that avoids any tax being paid on that amount. The measure will allow ATO to pursue family trusts that engage in these arrangements and impose tax on such distributions at a rate equal to the top personal rate plus the Medicare levy.

This measure applies from 1 July 2019.

Deductions disallowed for holding vacant land

The Government will disallow deductions for expenses associated with holding vacant land. Where the land is not genuinely held for the purpose of earning assessable income, expenses such as interest costs will be denied. It is hoped this measure will reduce the tax incentives for land banking which limit the use of land for housing or other development.

The measure will apply to both land held for residential and commercial purposes. However, the “carrying on a business” test would generally exclude land held for a commercial development. It will not apply to expenses associated with holding land that are incurred after:

• a property has been constructed on the land, it has received approval to be occupied and available for rent; or
• the land is being used by the owner to carry on a business, including a business of primary production.

Disallowed deductions will not be able to be carried forward for use in later income years. Expenses for which deductions will be denied could be included in the cost base if it would ordinarily be a cost base element (ie borrowing costs and council rates) for CGT purposes. However, if the denied deductions are for expenses would not ordinarily be a cost base element, they cannot be included in the cost base.

This measure applies from 1 July 2019.

Partnerships: enhancing integrity of concessions

Partners that alienate their income by creating, assigning or otherwise dealing in rights to the future income of a partnership will no longer be able to access the small business capital gains tax (CGT) concessions in relation to these rights.

The Government said this measure will prevent taxpayers, including large partnerships, inappropriately accessing the CGT small business concessions in relation to their assignment to an entity of a right to the future income of a partnership, without giving that entity any role in the partnership.

There are no changes to the small business CGT concessions themselves. The concessions will continue to be available to eligible small businesses with an aggregated annual turnover of less than $2 million or net assets less than $6 million.

These measures will apply from 7:30PM (AEST) on 8 May 2018.

TAX COMPLIANCE AND INTEGRITY

No tax deduction for non-compliant PAYG and contractor payments

Measures will be enacted to ensure that taxpayers will not be able to claim deductions for payments to their employees such as wages where they have not withheld any amount of PAYG from these payments, despite the PAYG withholding requirements applying.

Similarly, the Government intends to remove deductions for payments made by businesses to contractors where the contractor does not provide an ABN and the business does not withhold any amount of PAYG (again despite the withholding requirements applying).

These measures were recommended by the Black Economy Taskforce.

The revenue expectations linked with this expenditure is quite modest – “a small unquantifiable gain to revenue over the forward estimates period”.

The measures will commence on 1 July 2019.

Cash payments limit: payments made
to businesses

The Government will introduce a limit of $10,000 for cash payments made to businesses for goods and services.

This measure will require transactions over a threshold to be made through an electronic payment system or by cheque. Logically it would seem that this threshold amount should be $10,000, but this is not spelt out in the Budget papers or the media release.

The rules will not apply to transactions with:

• financial institutions; or
• consumer-to-consumer non-business transactions.

This measure was recommended by the Black Economy Taskforce. It is designed to support other measures designed to counter the black economy. There is no revenue impact associated with it.

The limit will apply from 1 July 2019. The Government will consult further as part of the implementation process.

Reportable payments system extended: security providers, road freight transport and computer design

The Government will extend the taxable payments reporting system (TPRS) to the following industries:

• security providers and investigation services;
• road freight transport; and
• computer system design and related services.

This will extend the TPRS requirements already applying to the building and construction industry. The TPRS requirements will also be extended, from 1 July 2018, to the cleaning and courier industries under measures contained in the Treasury Laws Amendment (Black Economy Taskforce Measures No 1) Bill 2018.

The reporting requirements will apply from 1 July 2019, with the first annual report required in August 2020.

SUPERANNUATION

SMSF member limit to increase from four to six

The Budget confirmed that the maximum number of allowable members in new and existing self managed superannuation funds (SMSFs) and small APRA funds will be expanded from four to six members from 1 July 2019. This measure was originally flagged on 27 April 2018 by the Minister for Revenue and Financial Services, Kelly O’Dwyer.

The proposed increase to the maximum number of SMSF members seeks to provide greater flexibility for large families to jointly manage retirement savings. Given the growth in the sector to date, Ms O’Dwyer said the measure will ensure SMSFs remain compelling retirement savings vehicle. The Government is expected to ask the ATO to work with industry on the design and implementation of this measure. It is not expected to have a revenue impact.

Extra SMSF members to provide flexibility

Currently, s 17A(1)(a) of the Superannuation Industry (Supervision) Act 1993 (SIS Act) requires an SMSF to have fewer than five members. In addition, each member must be a trustee of the fund (or a director of the corporate trustee). This seeks to ensure that all members are fully involved and equally responsible for fund decisions and investments.

The Government’s proposal to allow up to six SMSF members may assist those with larger families to implement intergenerational solutions for managing long-term, capital intensive investments, such as commercial property and business real property. For example, allowing an extra two members provides an opportunity to improve a fund’s cash flow by using the contributions of the younger members to make pension payments to the members in retirement phase, without needing to sell a long-term investment.

As each member must be a trustee of the fund, a decision to add extra members should not be taken lightly as it can add complexity to the fund’s management and investment strategy. A change to the membership of an SMSF will alter the trustee arrangements which can impact who controls the fund in the event of a dispute. This is especially relevant in the event of the death of a member, as the surviving trustees have considerable discretion as to the payment of the deceased’s super benefits (subject to any binding death benefit nomination).

Labor’s dividend imputation policy

Allowing up to six SMSF members may assist some SMSFs to implement strategies to guard against Labor’s proposal to end cash refunds of excess franking credits from 1 July 2019. SMSFs in tax-exempt pension phase are expected to feel the brunt of Labor’s proposal, although an exemption was subsequently announced for SMSFs with at least one Government pensioner or allowance recipient before 28 March 2018.

To avoid wasting non-refundable franking credits, Labor’s proposal would create an incentive for SMSFs in pension phase to add additional accumulation phase members (eg adult children) who could effectively make some use of the excess franking credits within the fund. That is, the excess franking credits would be used to absorb some of the 15% contributions tax in relation to the accumulation members. For example, the proposal to increase the maximum number of SMSF members from four to six would enable a typical two-member fund in pension phase to admit up to four adult children as members. If those adult children are making concessional contributions up to the maximum of $25,000 per year, the fund could use the excess franking credits to offset up to $15,000 (four x $25,000 x 15%) in contributions tax each year for the adult children.

This strategy would essentially replicate, to the extent possible, the position of large APRA funds under Labor’s policy. APRA funds typically have more contributing members and diverse income sources (beyond franked dividends) that can usually fully absorb the franking credits.

As already noted, a decision to add additional members to an SMSF may add complexity to the management and control of the fund. This would require professional advice for the specific circumstances of the fund and its members.

Superannuation work test exemption for contributions by recent retirees

The Government will introduce an exemption from the work test for voluntary superannuation contributions by individuals aged 65–74 with superannuation balances below $300,000 in the first year that they do not meet the work test requirements.

Currently, the work test in reg 7.04 of the Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations) restricts the ability to make voluntary superannuation contributions for those aged 65–74 to individuals who self-report as working a minimum of 40 hours in any 30-day period in the financial year. The measure will give recent retirees additional flexibilities to get their financial affairs in order in transition to retirement. It will apply from 1 July 2019.

SMSF audit cycle of three years for funds with good compliance history

The annual audit requirement for SMSFs will be extend to a three-yearly cycle for funds with a history of good record-keeping and compliance.

The measure will apply to SMSF trustees that have a history of three consecutive years of clear audit reports and that have lodged the fund’s annual returns in a timely manner.

This measure will start on 1 July 2019. The Government said it will undertake consultation to ensure a smooth implementation.

Super fees to be capped at 3% for small accounts, exit fees banned

Passive fees charged by superannuation funds will be capped at 3% for small accounts with balances below $6,000, while exit fees will be banned for all superannuation accounts from 1 July 2019. These measures form part of the Government’s Protecting Your Super Package.

The Minister for Revenue and Financial Services, Kelly O’Dwyer, said there were around 9.5 million super account with a balance less than $6,000 in 2015–2016. To avoid these small accounts from being eroded, the Government will cap the administration and investment fees at 3% annually, Ms O’Dwyer said.

The Government will also ban exit fees on all superannuation accounts. Exit fees of around $37 million were charged to members in 2015–2016 to simply close an account with a super fund. The proposed ban on exit fees will also benefit members looking to rollover their super accounts to a different fund, or who hold multiple accounts and see exit fees as a barrier to consolidating accounts.

 

With nearly two million low and inactive accounts belonging to women, the Minister said these measures will help to protect the hard-earned super savings of women from undue erosion. These changes will take effect from 1 July 2019.

Superannuation insurance opt-in rule for younger and low-balance members

The Government will change the insurance arrangements for certain cohorts of superannuation members from 1 July 2019. Under the proposed changes, insurance within superannuation will move from a default framework to be offered on an opt-in basis for:

• members with low balances of less than $6,000;
• members under the age of 25 years; and
• members with inactive accounts that have not received a contribution in 13 months.

These changes seek to protect the retirement savings of young people and those with low balances by ensuring their superannuation is not unnecessarily eroded by premiums on insurance policies they do not need or are not aware of. The Minister for Revenue and Financial Services, Kelly O’Dwyer, said around 5 million individuals will have the opportunity to save an estimated $3 billion in insurance premiums by choosing to opt-in to this cover, rather than paying for it by default.

The changes also seek to reduce the incidence of duplicated cover so that individuals are not paying for multiple insurance policies, which they may not be able to claim on in any event. Importantly, these changes will not prevent anyone who wants insurance from being able to obtain it. That is, low balance, young, and inactive members will still be able to opt in to insurance cover within super.

In addition, the Government said it will consult publicly on ways in which the current policy settings could be improved to better balance the priorities of retirement savings and insurance cover within super.

The changes will take effect on 1 July 2019. Affected superannuants will have a period of 14 months to decide whether they will opt-in to their existing cover or allow it to switch off.

CURRENCY:

This issue of Client Alert takes into account developments up to and including 14 February 2018.

Bill to implement housing affordability CGT changes

As part of the 2017–2018 Budget, the Federal Government announced a range of reforms intended to reduce pressure on housing affordability. Legislation – the Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 2) Bill 2018 – has now been introduced into Parliament. It proposes to:

• remove the entitlement to the capital gains tax (CGT) main residence exemption for foreign residents; and
• modify the foreign resident CGT regime to clarify that, for the purpose of determining whether an entity’s underlying value is principally derived from taxable Australian real property (TARP), the principal asset test is applied on an “associate inclusive” basis.

When the Bill has passed, both of these measures will apply from 9 May 2017. At the time of writing, the Bill is before the House of Representatives.

Main residence exemption

The main residence exemption disregards a capital gain or loss for CGT purposes if the taxpayer is an individual and the gain or loss came from selling or disposing of a dwelling that was their main residence throughout the ownership period. A partial exemption is available if the dwelling was their main residence for only part of the period or was also used in part to produce assessable income.

For this exemption, a dwelling includes:

• a building (eg a house) or part of a building (eg an apartment or townhouse) that consists wholly or mainly of accommodation;
• a caravan, houseboat or other mobile home; and
• any land immediately under the unit of accommodation; and
• adjacent land that, together with the land under the dwelling, does not exceed two hectares, and adjacent structures (eg a storeroom, shed or garage) used mainly for domestic or private purposes.

The main residence exemption may also apply to:

• an individual beneficiary in, or entity that is a trustee of, the deceased estate of a person who used the dwelling as a main residence; and
• the trustee of a special disability trust where the dwelling was the main residence of the individual principal beneficiary of the trust, or the main residence of another beneficiary who inherited the dwelling upon the principal beneficiary’s death.

Principal asset test

Under the foreign resident CGT regime, a capital gain or capital loss that a foreign resident makes in respect of a membership interest is disregarded unless both the non-portfolio interest test and the principal asset test are satisfied for the interest.

The principal asset test’s purpose is to determine when an entity’s underlying value is principally derived from TARP. A membership interest that a foreign resident holds in another entity will pass the principal asset test if the total market value of the entity’s TARP assets is greater than the total market value of its non-TARP assets.

Capital gains discount for affordable housing

The Bill also proposes to amend the Income Tax Assessment Act 1997 (ITAA 1997) and the Taxation Administration Act 1953 (TAA 1953) to provide an additional discount on CGT for affordable housing. The discount of up to 10% will apply if a CGT event happens to an ownership interest in residential premises that has been used to provide affordable housing.

This measure will apply to capital gains that investors realise from CGT events that occur on or after 1 January 2018, for affordable housing tenancies that start before, on or after 1 January 2018.

Changes to small business CGT concessions

Treasury has released draft legislation aimed at ensuring that taxpayers will only be able to access the small business capital gains tax (CGT) concessions for assets that are used (or held ready for use) in the course of a small business or are an interest in a small business.

This measure was announced in the 2017–2018 Federal Budget. The amendments include additional conditions that must be satisfied from 1 July 2017 to apply the small business CGT concession for capital gains that arise in relation to a share in a company or an interest in a trust (the “object entity”).

Broadly, these conditions require that:

• if the taxpayer does not satisfy the maximum net asset value (MNAV) test, the relevant CGT small business entity must have carried on a business just before the CGT event;
• the object entity must have carried on a business just before the CGT event;
• the object entity must either be a CGT small business entity or satisfy the MNAV test (applying a modified rule about when entities are “connected with” other entities); and
• the share or interest must satisfy a modified active asset test that looks through shares and interests in trusts to the activities and assets of the underlying entities.

The consultation period for the exposure draft ends on 28 February 2018.

Maximum net asset value test

To satisfy the MNAV test, the total net value of CGT assets owned must not exceed $6 million just before the relevant CGT event. The limit is not indexed for inflation.

When calculating the total, you must include the net value of CGT assets owned by the taxpayer, any connected entities, any of the taxpayer’s affiliates and entities connected with the affiliates.

Asset values contribute to the total only if the assets are used (or held ready for use) in a business carried on by the taxpayer or a connected entity. An asset doesn’t count towards the total if it is used in the business of an entity that is connected with the taxpayer only because of the taxpayer’s affiliate.

Bill to change residential property GST arrangements

A Bill has been introduced to amend the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) and related legislation, requiring purchasers of new residential premises and new subdivisions of potential residential land to remit the GST on the purchase price directly to the ATO as part of the settlement process. Under the current law, the supplier of the property (eg the developer) is responsible for remitting the GST to the ATO upon lodging a business activity statement (BAS) up to three months after settlement.

The new measure was announced in the 2017–2018 Federal Budget to deal with developers dissolving their business and setting up a new entity to avoid paying GST to the ATO. In late 2017, the ATO reported that it had identified more than 3,700 people using this type of “phoenixing” activity to avoid their tax obligations over the previous five years.

When the Bill is passed, GST withholding by purchasers will commence on 1 July 2018. There is a two-year transition window for contracts that were executed before that date and will settle before 1 July 2020. After that date, GST withholding will apply to all residential sales.

The withholding amount is 1/11th of the contract price for fully taxable sales (reduced to 7% for margin scheme sales). Settlement adjustments are ignored and the withholding is based on the stated contract price only.

Purchasers will have two options in relation to the withheld GST:

• remit it to the ATO on or before settlement; or
• give the vendor a bank cheque on settlement (made out to the ATO).

All vendors of residential premises/residential land (including developers, investors and private home owners) will need to provide a notice to the purchaser before settlement advising whether GST withholding applies. Failure to do so will be a strict liability offence, attracting a fine of $21,000 for individuals and $105,000 for companies.

At the time of writing, the Treasury Laws Amendment (2018 Measures No. 1) Bill 2018 is before the House of Representatives.

Moving to combat the black economy

The black economy includes people who don’t correctly report and meet their tax obligations, and people who operate entirely outside the tax and regulatory system. The Government and the ATO consider the black economy a significant economic and social problem. The Australian Bureau of Statistics estimated in 2012 that the black economy could be as large as 1.5% of Australia’s gross domestic product, or around $25 billion.

The Black Economy Taskforce

The Federal Government established the Black Economy Taskforce in 2017 “to develop an innovative, forward-looking whole-of-government policy response to combat the black economy in Australia, recognising that these issues cannot be tackled by traditional tax enforcement measures alone”. In its Interim Report (released May 2017) the taskforce noted that a range of trends, vulnerabilities and other considerations suggest that the black economy could be larger today, and made a number of initial recommendations based on the experience of foreign jurisdictions, extensive consultation with stakeholders and the anecdotal evidence that the taskforce received.

The Government has now introduced the Treasury Laws Amendment (Black Economy Taskforce Measures No. 1) Bill 2018 into Parliament. It proposes to combat the black economy by:

• prohibiting the production, distribution and possession of sales suppression tools;
• prohibiting the use of electronic sales suppression tools to incorrectly keep tax records; and
• requiring entities that have an ABN and that provide courier or cleaning services to report to the ATO (from 1 July 2018) information about transactions that involve engaging other entities to undertake those services for them.

At the time of writing, the Bill is before the House of Representatives.

Sales suppression tools

One of the taskforce’s recommendations for immediate action was to prohibit sales suppression technology and software. The Government announced its acceptance of this move in the 2017–2018 Federal Budget’’.

Transaction data recorded by point-of-sale (POS) systems is a key component of sales and accounting systems for modern business. This data provides a clear record of transactions against which accounts and tax returns can be audited. The importance of POS systems data for tax auditing has led to some people developing and using tools – known as ‘electronic sales suppression tools –’ that facilitate tax evasion by suppressing or falsifying POS records of transactions.

Currently, Australia’s tax law (namely the Taxation Administration Act 1953 [TAA 1953]) contains a variety of offences and penalties related to tax evasion and incorrect recordkeeping. These include penalties for providing false or misleading information to the ATO and for incorrectly keeping records with the intent of misleading the ATO.

Although these offences may apply to businesses that use electronic sales suppression software to incorrectly keep their records, the Government believes the TAA 1953 penalties aren’t high enough to reflect the seriousness of using tools to intentionally misrepresent a business’s tax position.

The Criminal Code in Sch 1 to the Criminal Code Act 1995 (CCA 1995) also contains offences related to forgery and providing false documents. Manufacturing electronic sales suppression tools may come under the offence for possessing, making or adapting a device for making forgeries, which can be punishable by imprisonment for up to 10 years. However, for the CCA 1995 provisions to apply, the device must be possessed, made or adapted specifically with the intention to commit forgery. The provisions also only apply to Commonwealth documents; this means, broadly, a document purporting to be made by a Commonwealth entity or official.

These requirements can be difficult to satisfy in the case of electronic sales suppression tools. Electronic POS records generally aren’t Commonwealth documents. And even where an electronic sales suppression tool that was developed overseas is used to falsify records kept for Australian tax purposes, it’s likely to be difficult to demonstrate that the tool was made or supplied with the intention of defrauding the Commonwealth specifically.

Third-party reporting

Another of the taskforce’s recommendations for immediate action was to extend the taxable payments reporting system (TPRS) to apply to contractors in the courier and cleaning industries. The Government also announced its acceptance of this move in the 2017–2018 Federal Budget.

The TPRS is a transparency measure that currently applies to the building and construction industry. It requires businesses in that industry to report to the ATO all payments that they make to contractors for building and construction services. The TPRS appears to have improved tax compliance in this area, and has the potential to do the same for the courier and cleaning industries, which are similarly high-risk sectors where tax evasion is concerned. 

Corporate tax avoidance: latest ATO targets

The ATO has provided a comprehensive update on its latest compliance projects and focus areas aimed at mitigating corporate tax avoidance.

Manipulation of thin cap rules

The ATO is investigating the possible manipulation of the thin capitalisation rules by 27 taxpayers in relation to asset revaluations totalling $78 billion.

The ATO had anticipated the amount of debt deductions disallowed would increase as a result of the safe harbour debt test thresholds reducing from 75% to 60% in 2014. However, it suspects that some taxpayers have responded by undertaking revaluations of certain assets to increase the value of their total assets. This has limited the impacts of the safe harbour thresholds reductions.

Intellectual property offshore

The ATO is investigating arrangements that result in the migration or artificial allocation of intangible assets, and rights in those assets, to offshore related parties by multinationals. These arrangements present a risk as multinationals implement non-arm’s length arrangements that:

• migrate or artificially allocate Australian generated intangibles to offshore related parties;
• involve the use of intangible rights or assets, where the value of these rights and assets is derived from, or maintained by, the activities and operations of Australian entities – particularly research and development (R&D) activities; and/or
• dispose of or allocate Australian generated intangible assets to offshore related parties and subsequently grant rights in these assets back to Australian entities.

Oil and gas industry

The ATO’s main focus in the oil and gas industry is on the treatment of labour costs (revenue versus capital) associated with the construction of high-value assets. The ATO is seeing taxpayers challenge the capital treatment of these costs. It is also concerned about the treatment of other “general” indirect costs associated with the construction of assets.

Pharmaceutical industry

The ATO will examine arrangements to determine whether Australian subsidiaries and their offshore related parties are operating under arm’s length conditions, such that the income declared reflects the economic contribution of the Australian operation to the Australian and global value chain. The ATO has refined its tax risk concerns to reflect the intricacies of the Australian pharmaceuticals industry and its subdivisions; for example, patented pharmaceuticals, generic pharmaceuticals, medical devices and over-the-counter vitamins and supplements.

Tax professionals and promoters

The ATO is also working to identify tax professionals and advisers who are promoting unacceptable tax planning. It is taking steps to deal with some advisers, including those who seek to cloak the promotion of unacceptable tax planning via inappropriate claims for legal professional privilege.

E-commerce

In the e-commerce industry, the ATO finalised 11 cases in 2017, issued amended assessments worth over $1 billion, collected tax of over $800 million and estimated future company tax revenue effects of over $500 million. It is still looking at another 20 major e-commerce players.

Social security means testing of lifetime retirement income streams

The Department of Social Services (DSS) has released its proposed means testing rules for pooled lifetime retirement income streams.

The pension standards in the Superannuation Industry (Supervision) Regulations 1994 (SIS Regs) were amended from 1 July 2017 to allow for a broader range of tax-exempt lifetime superannuation income stream products that enable the pooling of risk to manage longevity risk. Lifetime pensions and annuities that meet these new standards qualify for concessional tax treatment.

It is proposed that such pooled lifetime income streams would be assessed for social security means test purposes as follows:

• income test: 70% of all income paid from such products; and
• assets test: 70% of the nominal purchase price of the product until life expectancy at purchase, and 35% from then on.

The DSS says this approach should still provide a sufficient incentive to support take-up of lifetime products. It is expected that pensioners who allocate a proportion of their superannuation (eg up to 30%) to a pooled lifetime product will experience a similar outcome under the income test in the early years of retirement, compared to holding an account-based income stream and drawing the minimum payments.

Compared to the current means test rules for lifetime products, the DSS believes that assessing 70% of the nominal purchase price until life expectancy balances the up-front concessionality with a more consistent asset test assessment over time. It is also considered that maintaining this asset value until life expectancy will help mitigate the risk of lifetime products being used to shield assets from assessment. Once a person reaches life expectancy (as measured at the time they purchased the product), the assessable asset value will be reduced to 35%. DSS says this will help to address the risk of punitive asset test outcomes later in life, while still recognising an asset value for the product.

Deferred income streams

The new rules propose that deferred superannuation income stream products will receive the same asset test assessment as products that commence payments immediately. However, the proposed income test rules will only assess deferred products once payments commence.

Death and surrender values

Where new products offer surrender values or death benefits above the limits imposed by the “capital access schedule” in the SIS Regs, the assets test will assess the maximum value of:

• the amount determined under the proposed new rules (70% of the purchase price until life expectancy age, and then 35%);
• the value of the lump sum amount that is payable if a person withdraws from the product; or
• the highest death benefit payable under the product.

ATO now issuing excess transfer balance determinations

The ATO has advised that is now sending out excess transfer balance (ETB) determinations to individuals who have exceeded their superannuation transfer balance cap and not rectified the excess.

Transfer balance cap

The transfer balance cap, which has applied from 1 July 2017, is a new limit on the total amount of superannuation that can be transferred into the retirement phase. An individual can continue to make multiple transfers into the retirement phase as long as the total amount transferred remains below the cap.

The transfer balance cap has initially been set at $1.6 million, and will be indexed periodically in $100,000 increments in line with the consumer price index (CPI). The amount of indexation an individual is entitled to will be calculated proportionally based on the difference between their transfer balance total and the cap amount. If an individual’s transfer balance meets or exceeds the cap, they will not be entitled to indexation.

Excess transfer balance tax

Self managed superannuation fund (SMSF) members that had exceeded their transfer balance cap by $100,000 or less on 1 July 2017 had until 31 December 2017 to commute the excess capital. If they didn’t do so by that date, they will have to commute the excess capital and excess transfer balance earnings, and also pay excess transfer balance tax.

If an SMSF member receives an ETB determination from the ATO and the trustee has not already reported information to the ATO for that member, they must do so promptly so the ATO has all the required information about the member’s circumstances. The member can request an extension of time if needed, but should do this as soon as possible. The sooner the member removes the amount set out in the ETB determination from retirement phase, the lower the amount of excess transfer balance tax they will pay.

Windfarm grant was an assessable recoupment

The Full Federal Court has dismissed a taxpayer’s appeal and held that a Commonwealth grant of almost $2.5 million for the establishment of a windfarm was an assessable recoupment: Denmark Community Windfarm Ltd v FCT [2018] FCAFC 11.

Background

In May 2011, the taxpayer was given a renewable energy grant in respect of 50% of the project costs it had incurred in constructing two wind turbines. The grant was payable in instalments on the completion of identified project milestones.

The ATO issued a private ruling stating that the grant would be assessable income under s 20-20(2) of the Income Tax Assessment Act 1997 (ITAA 1997). In response, the taxpayer argued that the grant was:

• not assessable under s 20-20(2) because it was not received by way of an “indemnity”; and
• not an assessable recoupment within the meaning of subs 20-20(2) or s 20-20(3) because those provisions required the relevant deduction to have been claimed for a “loss or outgoing”, which, it said, was not the case for deductions claimed for depreciation.

At first instance the Federal Court held that the grant was an assessable recoupment under subs 20-20(2) and 20-20(3). The primary judge found that the grant was received as compensation for an “expense” the taxpayer had incurred, which fell within the meaning of “indemnity”.

Decision

The Full Federal Court dismissed the taxpayer’s appeal and held that the amounts received under the grant were assessable recoupments under s 20-20(2) of ITAA 1997. The Full Court rejected the taxpayer’s argument that the depreciation deductions it claimed were not “for the loss or outgoing” under s 20-20(2)(b). Rather, the Full Court considered that the phrase “for the loss or outgoing” was sufficiently broad to pick up a depreciation deduction under Div 40 or Subdiv 328-D where the relevant outgoing was the cost of the depreciating asset. In such circumstances, the depreciation deduction may properly be regarded as a deduction “for the loss or outgoing”.

Thomson Reuters would like to hear from you

Subscribers are invited to submit topics for articles for future publication. Information should be sent to:

Publisher – Client Alert

Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668
PO Box 3502, Rozelle NSW 2039

Tel: 1800 074 333

Email: contentfeedback@thomsonreuters.com

Website: www.thomsonreuters.com.au