| Brought to you in association with Thomson Reuters | Your weekly tax update | 4 June, 2009 |
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Agribusiness managed investment schemes: review announced Following the recent collapses of Timbercorp and Great Southern, the chairman of the Parliamentary Joint Committee on Corporations and Financial Services, Bernie Ripoll, has announced that the committee will conduct an inquiry into agribusiness managed investment schemes (MIS) (PDF – 45 KB). The inquiry will focus on the structure, marketing and taxation treatment of agribusiness MIS. For further information read Agribusiness investments statement. CPA Australia intends to make a submission to the review. Members are invited to email comments to tax@cpaaustralia.com.au Government's superannuation review announced The Minister for Superannuation and Corporate Law has announced details of the Australian government's review into the governance, efficiency, structure and operation of Australia's superannuation system. The review will be headed by a panel of experts made up of a fulltime chair (Jeremy Cooper, deputy chairman of ASIC) and five part-time members. The review will focus on better governance, greater efficiency, improved structures and clearer operations. However, the review will exclude consideration of issues before the Henry Tax Review concerning the level of superannuation contributions, taxation concessions and other incentives. The panel will call for public submissions and conduct public hearings in due course. It is expected to report to the government by 30 June 2010, although it may report on particular issues prior to that date. According to CPA Australia, the government's review of the superannuation industry offers the opportunity to restore much needed confidence and clarity. CPA Australia superannuation policy adviser, Michael Davison, said 'the accounting profession has a critical contribution, both to the review and to the ongoing health of the system'. Upcoming ATO consultations and meetings
Member enquiries or issues for these meetings should be sent to tax@cpaaustralia.com.au
Tax treatment of off-market share buybacks: Treasury paper Treasury has released a discussion paper to facilitate consultation on the Australian Government's 2009 Federal Budget announcement that it will implement the recommendations made by the Board of Taxation to improve the tax treatment of off-market share buybacks. Under the proposal, the primary taxation consequences of share buybacks contained in Div 16K of Pt III of the ITAA 1936 will be transferred to the ITAA 1997. Modifications will be made to implement the recommendations of the Board of Taxation. The amendments are proposed to apply to off-market share buybacks undertaken after the date of Royal Assent of the amending legislation. Submissions are due by Friday 10 July. Managed investment trusts and capital account election: Treasury paper Treasury has released a discussion paper on proposed changes to give effect to the Government's 2009 Federal Budget decision to allow Managed Investments Trusts (MITs) to elect capital account treatment for gains and losses on disposal of their investments. The changes are proposed to have effect from the 2008 – 2009 and later income years. 'In taking this decision in the Budget, the Government took into account interim advice from the Board of Taxation (BOT) on this matter. However, there were some aspects that the BOT undertook to examine further as part of the BOT's ongoing review of MITs. I have therefore asked the BOT to bring forward its final advice on legislative design issues raised in the Treasury discussion paper,' said the Assistant Treasurer. Submissions are due by 10 July 2009. Board of Taxation to conduct post-implementation reviews of consolidation and PSI rules The Assistant Treasurer has announced that the Board of Taxation would undertake post-implementation reviews of certain aspects of the consolidation regime and the provisions relating to the alienation of personal services income. The consolidation post-implementation review will examine: (i) the operation of the single entity rule; (ii) the interaction between the consolidation provisions and other parts of the income tax law; and (iii) the operation of the entry history rule in acquisition cases. Mr Bowen said the board will provide further details on proposed timing for this review. In undertaking the PSI review, the board will: (i) examine the operation of the rules to determine whether they are achieving their desired policy outcome; (ii) identify any problems with the operation of the rules; and (iii) if appropriate, consider options for improving the rules. The board will report on this review by the end of October 2009. Investment fund manager tax exemption In Federal Parliament recently, the Assistant Treasurer said the Australian Financial Centre Forum had received many representations suggesting that the lack of tax clarity and consistency in a number of areas was inhibiting the growth of the financial services sector. He said a particular issue that industry has raised is the tax treatment of income derived by foreign funds when they utilise the services of Australian fund managers. The Assistant Treasurer said he has asked Treasury to examine and advise him on industry's proposal to introduce an investment manager tax exemption (PDF - 1.8 MB). Partnerships and carried forward foreign losses: ATO treatment The ATO has released details of its administrative treatment regarding the Australian government's proposal to allow partnerships to utilise foreign losses carried forward from prior years in the same manner as other entities. Treasury has released exposure draft legislation on the proposal for comment. The ATO said it will apply the existing law in the period between the announcement and enactment of the proposed law and will not undertake specific compliance activity to enforce the existing law during the period between the announcement and enactment of the proposed law. Deductibility of legal expenses — Day case: Tax Office statement The ATO has released a Decision Impact Statement on the High Court decision in FCT v Day (2008) 70 ATR 14. In that case, the majority of the High Court upheld the Full Federal Court's decision that legal expenses incurred by a taxpayer were deductible. Among other things, the ATO said that, where legal expenses are incurred by the employee in an ongoing employment relationship the majority's decision clarifies that the requisite connection required by s 8-1(1)(a) of the ITAA 1997 will not only be satisfied where the connection between the outgoing and the income is identified as being incurred to defend the manner of performance of positive duties, or as arising out of the day-to-day activities of employment. It said the decision establishes that where the connection between the legal expenses and the income is identified as being incurred to answer allegations of breaching negative duties imposed under the terms of the employment this may also be sufficient to satisfy s 8-1(1)(a) of the ITAA 1997. CGT trust cloning exemption; limited CGT rollover re fixed trusts: ATO treatment The ATO has released details of its administrative treatment regarding the Australian government's proposal to remove the CGT trust cloning exception to the CGT events E1 and E2. The ATO has also released details of its administrative treatment regarding the government's proposal to introduce a limited CGT rollover for assets transferred between fixed trusts, ie trusts that have the same beneficiaries with the same entitlements and no material discretionary elements. The ATO said taxpayers affected by the announcements that are self-assessing before the proposed changes become law, should apply the existing law. When the law is enacted, the ATO said they will then need to seek an amendment to their assessments. If taxpayers choose to self-assess by anticipating the announcements, the ATO said they will need to review the assessments when the law is enacted. If they anticipate the changes correctly, no further action will be required. If they don't anticipate the changes correctly, the ATO said they will need to seek an amendment to their assessments. Self-education expenses — Anstis case: ATO treatment The Commissioner of Taxation has lodged an appeal against the decision of the Federal Court in Anstis v FCT [2009] FCA 286. In that case, the Federal Court held that self-education expenses claimed by a taxpayer were deductible as the expenses were incurred as a necessary incident of deriving assessable income, which in this case was the Youth Allowance. Until the matter is resolved, the ATO said it will continue to apply its view set out in Taxation Ruling TR 98/9. That is, education expenses are not deductible against various Commonwealth educational assistance schemes. Tax bonus payments: ATO says lodge today The ATO says around 500,000 taxpayers who may be eligible for the tax bonus payments have yet to lodge their 2007 – 2008 tax returns. The ATO reminds these taxpayers to lodge before time runs out. Acting Commissioner of Taxation, David Butler, said if these taxpayers do not lodge by 30 June 2009, they will miss out on the payment, unless they already have an extension in place. Non-forestry managed investment schemes: governmentt releases findings The assistant treasurer has released the findings of a review of non-forestry agricultural managed investment schemes (MIS) (PDF – 276 KB). The review undertaken by Treasury examined the costs and benefits of non-forestry MIS including the tax treatment of such schemes. Mr Bowen said 'the review found that the existing tax treatment of non-forestry MIS could be viewed as sub-optimal from an economic perspective'. However, he added that 'the review did not definitively conclude whether this was producing distortions in the markets for land and water, or for the commodities that MIS produce'. The Assistant Treasurer said the Government will consider whether changes to the tax treatment of non-forestry MIS are required in light of the recommendations of the Henry tax review. Three ATO IDs withdrawn The ATO has withdrawn the following ATO IDs:
ATO website updates From the ATO website:
New Zealand Budget 2009 The 2009 New Zealand Budget was handed down on 28 May 2009 by New Zealand Minister of Finance, Bill English. The personal tax cuts that were due to take effect on 1 April 2010 and 1 April 2011 have been delayed to prevent further increases in New Zealand government debt. Tax cuts that came into effect on 1 April 2009 remain. Mr English said tax cuts would be assessed 'to consider whether they are affordable, as part of future budget processes'.
Tax (Budget Measures No 1) Bill passes The Tax Laws Amendment (2009 Budget Measures No 1) Bill 2009 has been passed by the House of Representatives without amendment and now moves to the Senate. The Bill:
Tax Bill (No 3) passes The Tax Laws Amendment (2009 Measures No 3) Bill 2009 has been passed by the House of Representatives without amendment and now moves to the Senate. The Bill contains the following amendments:
Medicare levy thresholds Bill introduced The Tax Laws Amendment (Medicare Levy and Medicare Levy Surcharge) Bill 2009 has been introduced in the House of Representatives and implements 2009 Federal Budget announcements to:
Carbon Pollution Reduction (Household Assistance) Bill introduced The Carbon Pollution Reduction Scheme Amendment (Household Assistance) Bill 2009 has been introduced in the House of Representatives. The Australian government proposes via this Bill to provide upfront support to low and middle-income households to help in adjusting to a low pollution future from 2011 – 2012. The support includes direct cash assistance, tax offsets and family tax benefit increases. The provisions of the Bill state that if the Carbon Pollution Reduction Scheme Act 2009 does not commence on or before 1 July 2011, the Household Assistance Bill will not commence at all. Family tax benefit changes Bill introduced The Family Assistance Amendment (Further 2008 Budget Measures) Bill 2009 has been introduced in the House of Representatives and contains the following amendments:
The changes generally apply from Wednesday 1 July, but some from 1 July 2010. Tax-free lump sum payments to dependant pension recipients Bill introduced The Veterans' Affairs Legislation Amendment (Budget Measures) Bill 2009 has been introduced in the House of Representatives. Among other things, it will cease payment of the majority of dependants' pensions and will provide for a lump sum payment to the existing recipients. The lump sum payment will be exempt from income tax and consequential amendments to the ITAA are made. Tax-free apprenticeship payments Bill introduced The Social Security and Other Legislation Amendment (Australian Apprentices) Bill 2009 has been introduced in the House of Representatives. The Bill exempts the value of the payments, made under the Skills for Sustainability for Australian Apprentices and Tools For Your Trade, from treatment as assessable income for taxation, social security and veterans' affairs purposes. Carer supplement and FTB changes Bill receives Royal Assent The Social Security and Family Assistance Legislation Amendment (2009 Budget Measures) Bill 2009 received Royal Assent as Act No 35 of 2009. It had passed all stages of Parliament without amendment. The Bill contains 2009 Federal Budget measures concerning the introduction of a new carer supplement, and FTB and indexation amendments. Depreciation: new effective lives determination The Income Tax (Effective Life of Depreciating Assets) Amendment Determination 2009 (No 1) has been registered and provides for new effective lives of assets to apply from 1 July 2009. Assets affected include those in the mining industry, manufacturing industry, accommodation and food services industry, transport and storage industry, arts and recreational services industry, and other services (for example, automotive body, paint and interior repair).
No plans to restrict access to super till age 67: PM Australian Prime Minister Kevin Rudd has recently indicated that the government does not intend to restrict accessibility to super until age 67. In a radio interview, Mr Rudd said, 'We have absolutely no plans to make any change along those lines.' Inspector-General of Taxation to review super guarantee charge The Inspector-General of Taxation has announced that he will review the ATO's administration of the superannuation guarantee charge (SGC). The inquiry follows the Australian government's announcement of its review into the governance, efficiency, structure and operation of Australia's superannuation system. The review will consider the ATO's implementation of strategies to improve compliance, communication strategies with employees regarding their employer's compliance, and timeliness in collecting unpaid superannuation guarantee. ATO website updates From the ATO website:
Super and environmental, social and governance risks: minister The Minister for Superannuation and Corporate Law, Senator Nick Sherry, recently gave a speech on the importance of environmental, social and governance (ESG) risks to superannuation funds. Senator Sherry said, 'ESG and other extra-financial factors should be incorporated into the investment decision-making process of superannuation trustees'.
The following rulings were released by the ATO on 3 June:
Unusual circumstances and PSB determination In AAT Case [2009] AATA 390, Re Yalos Engineering Pty Ltd and FCT, the AAT set aside the commissioner's decision not to grant a personal services business (PSB) determination to a taxpayer for the personal services provided by an employee for the 2003 – 2004 and 2004 – 2005 income years. For the relevant years, the taxpayer was engaged by an unrelated company to design and oversee the fabrication and installation of an offshore pipe line. However, the project encountered unexpected delays which were beyond the control of the company and the taxpayer. The Tribunal concluded that the taxpayer could have been expected to meet the unrelated clients test but for the unusual circumstances in the relevant years, even though the taxpayer failed the results test for those years. Accordingly, the tribunal directed the commissioner to grant a PSB determination for those years. Rental deductions denied In AAT Case [2009] AATA 385, Re Bonaccordo and FCT, the AAT confirmed that a taxpayer was not entitled to rental property deductions in relation to a property he had purchased which had remained vacant for the three income years in question. It did so on the basis that the taxpayer had not taken sufficient steps to advertise the property for rent, despite putting a sign at the front of the property. Claim for costs to include cost associated with GST determination In Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 5], the Western Australia Supreme Court held that a contractual claim for costs by the applicant should include proper costs in connection with the determination of whether GST was chargeable on lease payments to be received under a rental lease entered into before 1 July 2000. GST: sale of vacant land not input taxed supplies In AAT Case [2009] AATA 395, Re Vidler and FCT, the AAT confirmed that the sale of two blocks of vacant land by a taxpayer constituted taxable supplies and therefore the taxpayer was liable to remit GST on those sales. In a separate matter, it also affirmed the commissioner's decision that the taxpayer had a GST shortfall in respect of the sale of a grazing land. Penalties for false statement confirmed In Pearson v DCT, and following the decision of the Full Federal Court in Pearson v FCT [2006] FCAFC 111 relating to adjustments to the taxable income of a trust of which the taxpayer was an beneficiary, the Federal Court confirmed the imposition of penalties for 'false and misleading statement' on the basis that the taxpayer falsely stated her income by failing to disclose distributions to which she was entitled. However, the court set aside penalties imposed for recklessness on the basis that 'recklessness' required either real knowledge that statements may be incorrect or gross indifference to their correctness, and that the taxpayer had not been 'reckless' in this sense. 'Public interest immunity' claim over documents In Law Institute of Victoria Ltd v DCT (No 2), the Victorian Supreme Court held that 'public interest immunity' did not apply to all documents sought by the Commissioner of Taxation from the Law Institute of Victoria pursuant to a notice issued under s 264(1) of the ITAA 1936. The documents related to a former Victorian solicitor. Appeals update The High Court has refused the taxpayer's application for special leave to appeal from the decision of the Victorian Court of Appeal in DPP (C'th) v Rowson [2007] VSCA 176. The Court of Appeal decision, which now stands, allowed the DPP's appeal and increased the jail sentence imposed on a nightclub manager for GST fraud from three years to five years, with a non-parole period of three years. The man had been sentenced in September 2006 by the Victorian County Court to a total of three years jail for two counts GST fraud of over $3.7 million.
NSW payroll tax: soccer association benefits the community, therefore exemption allowed In Northern New South Wales Football Limited v chief commissioner of state revenue, the New South Wales Administrative Decisions Tribunal held the taxpayer had as its dominant purpose a benevolent and / or charitable purpose and therefore the wages paid or payable by the taxpayer for work performed in connection with the benevolent purpose were exempt wages in accordance with s 48(2) of the Payroll Tax Act 2007 (New South Wales). NSW land tax: principal place of residence exemption denied In Lynch v chief comissioner of state revenue, the New South Wales Administrative Decisions Tribunal affirmed the chief commissioner of state revenue's decision to disallow a principal place of residence land tax exemption for husband and wife taxpayers in respect of a property for the 2007 and 2008 land tax years. In January 2006, the taxpayers leased their home for a two-year period to fund their 'one and only trip around Australia' in retirement. They objected to the imposition of land tax arguing that 'land tax is a tax on investment property and excludes the family home' and that they were not aware of the tax at the time. The tribunal acknowledged the taxpayers' circumstances in which their home was the only property they owned, however, it said at issue was the applicability of the relevant provisions of the Land Tax Management Act 1956 (New South Wales). New South Wales: OSR state tax and payroll tax seminarsa The New South Wales Office of State Revenue (OSR) has advised that it will be conducting free payroll tax and state tax update seminars in metropolitan and regional New South Wales. The payroll tax seminars, which are designed for businesses, will cover legislative and procedural issues relating to the payment of New South Wales payroll tax. Queensland: OSR fee increases The Revenue Legislation Amendment Regulation (No 1) 2009 was gazetted on 15 May. The Regulation increases certain fees and charges payable to the Queensland Office of State Revenue (OSR), including:
The Regulation commences on Wednesday 1 July.
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'Twist in share schemes stoush' (Report that Treasury admits that participation in employee share schemes will fall if the Budget tax changes are introduced) AFR [p 3], Wed 3.6.2009 'Double tax blow for expat employers and workers' (Claim that the Budget's s 23AG changes re expats working overseas will increase costs for some domestic companies) AFR [p 5], Wed 3.6.2009 'ATO is latest super target' (Inspector-General of Taxation will review Tax Office's administration of the super guarantee charge) AFR [p 15], Wed 3.6.2009 'Time's up on money laundering replies' (AUSTRAC has issued final warnings to tardy businesses about anti-money laundering compliance reports) AFR [p 15], Wed 3.6.2009 'Clock ticks on old geared unit trusts' (Some DIY funds have only a few weeks to make sure they pay all trust distributions by 30 June) AFR [p 32], Wed 3.6.2009 'Funds may soon be advising members' (Report that the Government's financial services working group is preparing to allow super funds to provide limited advice to their members) AFR [p 53], Wed 3.6.2009 'Don't rock the super boat' (AFR Editorial on the review of the superannuation system) AFR [p 62], Wed 3.6.2009 'Attack over change to health rebate' (Debate begins on Bills to change private health tax offset) AFR [p 4], Tue 2.6.2009 'Opposition split threatens carbon scheme' (Comment on possible fate of the Government's carbon scheme legislation) AFR [p 5], Tue 2.6.2009 'ACTU links super levy to payouts' (Report that ACTU congress will endorse its policy to increase compulsory super from nine per cent to 12 per cent) AFR [p 8], Tue 2.6.2009 'Bligh open to tax reforms' (Report that the Qld Government has recommended the abolition of some stamp duties) AFR [p 10], Tue 2.6.2009 'Key dates to remember as financial year ends' (Year end and the new temporary investment allowance) AFR [p 49], Tue 2.6.2009 'Culture key to share plans' (Comment on employee share plans) AFR [p 62], Tue 2.6.2009 'Plan to win private funds for projects' (Treasury, the Tax Office and state governments are working on plans to encourage more private sector investment in infrastructure projects) AFR [p 1], Mon 1.6.2009 'Depreciation rules branded a hurdle to investment' (Report that tax experts says tax depreciation rules pose obstacles to Australian-based branches of offshore banks) AFR [p 8], Mon 1.6.2009 'Self-managed funds come under scrutiny' (The self-managed super funds industry will be examined as part of the Government's review into the retirement industry) AFR [p 3], 30-31 May 2009 'States close ranks over taxes' (Report that the state and territory governments have warned the Federal Government that any reform of the tax system should not leave them worse off) AFR [p 5], 30-31 May 2009 'No rush to review tax' (Govt releases Treasury report into non-forestry managed investment schemes) AFR [p 7], 30-31 May 2009 'Losses can be double trouble' (Some tax planning issues for SMEs: tax losses, bad debts, loans) AFR [p 41], 30-31 May 2009 'ACTU to target retirement income' (Report that the union movement will push for a rise in the single pension rate, bans on advisers getting commissions on super guarantee products, and a 'super baby bonus') AFR [p 3], Fri 29.5.2009 'Corbett says commissions flawed' (Report that a Reserve bank member says the commission and fee-based model for remunerating fund managers and financial advisers should be overhauled) AFR [p 5], Fri 29.5.2009 'Treasury revisits fund managers tax' (Report that the Government may give fund managers a tax break to encourage investment by overseas clients) AFR [p 7], Fri 29.5.2009 'Objections to crackdowns' (Report that the Government's proposed crackdown on employee share schemes could drive up executive cash bonuses and lead to further tax volatility) AFR [p 13], Fri 29.5.2009 'Budget tips decade of deficits' (2009 NZ Budget defers tax cuts) AFR [p 18], Fri 29.5.2009 'Business urges share plan reprieve' (Report that business leaders and tax experts have called on the Government to urgently reinstate the tax rules on employee share schemes) AFR [p 1], Thur 28.5.2009 'Tax law proposals 'a threat to privacy'' (Claim that proposed consolidation of tax laws could jeopardise confidentiality) AFR [p 5], Thur 28.5.2009 'Sting in their tales: creditors fear the worst' (The Great Southern collapse - some invested for the tax deductions and future income) AFR [p 8], Thur 28.5.2009 'Bowen cites ATO to defend crackdown' (Report that the Assistant Treasurer has defended the Government's crackdown on employee share schemes) AFR [p 10], Thur 28.5.2009 'Swan's welcome mat for home investment' (Claim that the Budget's changes to super caps will increase the attractiveness of direct property investments) AFR [p 47], Thur 28.5.2009 'Solutions for a way out of this dilemma' (How the employee share scheme situation can be salvaged - an AFR roundtable) AFR [p 60], Thur 28.5.2009 'Double tax plan trouble for swan' (Report of resources and infrastructure industries response to Government's proposal re tax treatment of employees working overseas) AUSTRALIAN [p 5] Wed 3.6.2009 'Cracking the code' (Report that industry super fees are rising amid global economic downturn) AUSTRALIAN [Wealth, p 1] Wed 3.6.2009 'Loans the lifeblood of self-managed funds' (Issues to consider before using a trust to borrow within a super fund) AUSTRALIAN [Wealth, p 5] Wed 3.6.2009 'Call to tax alcohol equally' (Report of calls within the Coalition to back uniform tax for beer, wine and spirits) AUSTRALIAN [p 5] Tue 2.6.2009 'PM rules out age change on super' (Report that the PM has ruled out that the Government will lift the super preservation age to 67) AUSTRALIAN [p 4] 31-31 May 2009 'Reform tax, just don't cut our share: states' (Report that the states and territories have released their submission to the Henry tax review calling for tax reform) AUSTRALIAN [p 4] 31-31 May 2009 'NZ budget reins in spending' (Report that the NZ Budget has deferred promised tax cuts for 2 years) AUSTRALIAN [p 2] Fri 29.5.2009 'Leaders press case for tax reform' (Report that state and territory governments will lobby the Federal Government to stay committed to tax reform despite economic downturn) AUSTRALIAN [p 6] Fri 29.5.2009 'Cutting payroll tax would spare jobs' (According to research, cutting payroll tax would be the cheapest and most efficient means of protecting jobs) AUSTRALIAN [p 1] Thur 28.5.2009 '$40M in stimulus paid to dead people, expats' (Claim that according to figures, tax bonus payments have been made to expatriates and deceased estates) AUSTRALIAN [p 4] Thur 28.5.2009
CPA Australia seeks your input on issues it should take up on the members' behalf. If you would like to contact us, email tax@cpaaustralia.com.au
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