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| Brought to you in association with Thomson Reuters | Your weekly tax update | 27 August, 2009 |

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Company tax reduction to be examined: Henry tax review In a recent speech, Dr Ken Henry discussed some progress of the review into the tax system. Some of the points he raised included:
CPA Australia is pleased to note this development as we indicated in our second submission to the review (available from our website) that we were very supportive of the current dividend imputation system and that we did not see a compelling case for a move away from it at this stage. ATO approach to trust issues pending Bamford litigation The ATO has released Practice Statement Law Administration PS LA 2009/7, which sets out its compliance approach to certain trust issues pending resolution of the Bamford case. The ATO indicated that as yet no date has been set for hearing of the special leave applications to the High Court from the Full Court of the Federal Court's decision in Bamford v FCT [2009] FCAFC 66. Broadly, the Federal Court in Bamford's case held that the meaning of 'income of the trust estate' under section 97 of the Income Tax Assessment Act 1936 would be income as defined under the relevant trust deed. Depending on the terms of each trust deed, income could therefore be defined as including capital amounts in addition to ordinary income. Such a categorisation may determine how the beneficiaries of a trust may be taxed on any capital gains made, especially where a discretionary trust has different income and capital beneficiaries. However, the practice statement confirms that the ATO will continue to apply its view that 'income of a trust estate' comprises ordinary income in the hands of a trustee after making provision for proper trust outgoings. It is the ATO's view that the provisions of a trust deed cannot alter the character of the receipts or outgoings in the hands of a trustee. Accordingly, the ATO does not currently accept the view that capital amounts can be included in the income of the trust estate on the basis of how 'income' is defined under the trust deed. The practice statement also provides that where the taxpayer has previously relied on the decision of the Federal Court in Bamford, or on an alternative view that is reasonably open, and providing a tax avoidance scheme is not involved, there would be no liability for administrative penalties in respect of any tax shortfall if the ATO's view on the meaning of income was not applied. It also provides that ATO staff should consider remitting interest charges in these circumstances, and seek the agreement of taxpayers to defer actioning a ruling, objection or appeal on the above matters pending resolution of the Bamford case. It is strongly recommended that all members who deal with any trust should review the terms of each trust deed (particularly in respect to its definition of income) to determine whether it includes capital amounts, and how any distribution of capital in accordance with that deed may be potentially treated under the practice statement. CPA Australia will closely monitor all issues associated with the Bamford High Court special leave application and liaise with the ATO regarding the application of the practice statement. Further queries on this matter can be emailed to us at tax@cpaaustralia.com.au. Standard business reporting latest releases The Australian Government has announced the latest release of new standard business reporting (SBR) taxonomy and tools for software developers. The minister for financial services, superannuation and corporate law, The Hon. Chris Bowen, said this latest release, which includes the BAS, the ASIC Copy of financial statements and reports - coversheet (form 388), and the New South Wales payroll tax monthly return, means software developers can now begin building SBR support into their business and accounting systems. The minister said the September SBR release will include the ATO PAYG withholding payment summaries, ATO tax file number declaration, ATO FBT return forms and the Western Australia payroll tax monthly return. Detailed information on the coming releases is available on the SBR website. Australian Government removes interest withholding tax on Commonwealth Government securities The Australian Government has announced that it will remove interest withholding tax (IWT) on Commonwealth Government securities. The Treasurer, the Hon. Wayne Swan, said this will address the anomaly that has existed since IWT was removed from publicly issued corporate bonds in 1999 and state government securities in 2008. The exemption will apply to interest paid after the day the Bill making the amendments receive royal assent. The Australian Government has also released for comment draft legislation on the amendments. Submissions are due by Friday 28 August. Members who have comments on the draft legislation should email them to us at tax@cpaaustralia.com.au as soon as practicable for inclusion in a possible CPA Australia submission. Tax exemption under sovereign immunity to be codified The Assistant Treasurer, Senator Nick Sherry, has announced that the Australian Government will introduce amendments to the income tax law to formalise the existing tax practice of exempting certain income earned by foreign governments. Senator Sherry said the changes will provide greater certainty to foreign governments investing in Australia as to the income tax treatment of 'passive' investments. Senator Sherry said the proposed changes will codify this existing practice. Comments on these proposed amendments can be emailed to us at tax@cpaustralia.com.au Australia and New Zealand reaffirm trans-Tasman cooperation The Australian and New Zealand Prime Ministers Kevin Rudd and John Key recently held their fourth bilateral meeting in Canberra. The prime ministers agreed that they would bring sustained focus to making new progress in exploring implications for the trans-Tasman economy from changes to tax regimes in Australia and / or New Zealand, noting New Zealand's strong interest in the mutual recognition of imputation credits. Tax and financial cyber crime warning Senator Nick Sherry has warned that an ATO submission to a parliamentary inquiry into cyber crime has highlighted the growing dangers to the financial and tax security of taxpayers and government agencies. Senator Sherry said there had been a 31 per cent increase between 2007 and 2008 in scammers and hackers targeting the ATO's computer systems. The ATO warned taxpayers that there have been a number of email scams circulating recently, claiming to offer a refund from the ATO. The ATO said taxpayers should delete suspicious emails immediately. Taiwan Typhoon Morakot donations deductible Senator Nick Sherry has announced that Typhoon Morakot, which hit Taiwan on 7 August, has been recognised as a disaster for the purpose of allowing taxpayers to claim a tax deduction for donations made to charities for relief efforts. Senator Sherry said donations to such funds are tax deductible for a period of two years from 7 August 2009. Upcoming consultations and meetings
Member enquiries or issues for these meetings should be sent to tax@cpaaustralia.com.au ATO IDs: four new; one withdrawn The ATO has released the following IDs:
The ATO has withdrawn ATO ID 2005/72 (assessability of rental income received by Australian resident from the UK). ATO website updates From the ATO website:
Government's super review consultation approach The review panel of the Australian Government's super system review has released details of its three-phase consultation approach covering governance, operation and efficiency, and structure. Each phase will follow the same format - that is, the release of an issues paper for that phase, followed by time for interested parties to make submissions, then followed by the release of the review panel's preliminary recommendations. The review panel also released the issues paper for the first phase on governance. Issues being considered in the phase include trustee knowledge, skills and training; conflicts in outsourcing; accountability to members; and the composition of boards of trustees. Submissions are due by Friday 16 October. Indexation of Australian Government super schemes report The Australian Government has released the report on the review of pension indexation arrangements in Australian Government civilian and military super schemes. The review recommended that pensions from such schemes should 'continue to be indexed by the CPI as it is the most suitable index to protect pensions against inflationary price increases available at this time'. The Minister for Finance and Deregulation, The Hon. Lindsay Tanner, said the Australian Government 'fully supports the findings and recommendations outlined in the report'. APRA superannuation fund-level performance data The Australian Prudential Regulatory Authority (APRA) has released performance data for individual superannuation funds, covering the five-year period from 2004 to 2008. APRA Deputy Chairman, Ross Jones, said the fund-level data will assist superannuation trustees and other interested parties to assess the relative performance of the long-term investment strategies. APRA also released a paper summarising its response to submissions received to its discussion paper on super fund performance data at fund level. Draft AML/CTF rules: cashing out of low balance super accounts The Australian Transaction Reports and Analysis Centre (AUSTRAC) has released draft AML/CTF rules that propose to exempt super fund trustees from carrying out the customer identification requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 on investors where the super account balance is not greater than $1000, the whole of the interest of the investor in the fund has been cashed out and the investor's account is closed as soon as practicable after the cashing out. Submissions are due by Thursday 3 September. The following rulings were released by the ATO on 26 August:
High Court: no power to issue s 260-5 notice if company in liquidation In Bruton Holdings Pty Ltd (in liquidation) v FCT, the High Court unanimously allowed the taxpayer's appeal from the decision of the Federal Court in FCT v Bruton Holdings Pty Ltd (in liq) (2008) 70 ATR 903 and held that the Commissioner of Taxation did not have the power to issue a notice under s 260-5 of the Taxation Administration Act 1953 on the debtor of a company after the company had been put into liquidation. This was because there was a specific regime in s 260-45 of the Act that dealt with the collection and recovery of tax liabilities of companies from liquidators (which, among other things, provides that a liquidator is to set aside from the assets of a company amounts to meet notified tax liabilities). CGT: capital contribution reflected in 'state or nature' of shares In National Mutual Life Association of Australia v FCT, the majority of the Federal Court overturned the decision at first instance in National Mutual Life Association of Australia v FCT [2008] FCA 1871, and allowed the taxpayer's appeal. In that case, the Federal Court held that a capital contribution of over £42m made by the taxpayer to its subsidiary could not be included in the cost base of shares the taxpayer held in the subsidiary, as the expenditure did not satisfy the requirements of fourth element cost base expenditure (as it then applied). In particular, the court found the expenditure was not reflected in the 'state or nature' of the shares at the time of their disposal as then required under former s 110-25(5) of the Income Tax Assessment Act 1997. However, the majority of the Full Court found the expenditure was reflected in the 'state or nature' of the shares, as the phrase 'state or nature' also encompassed the notion of 'value' - given that an asset's value is one of its attributes. Successful claim of privilege in relation to $478 million tax dispute In RCI Pty Ltd v FCT, the Federal Court affirmed a taxpayer's claim of legal professional privilege over documents the Commissioner of Taxation had sought under a 'notice to produce' in relation to litigation concerning over $478 million of disputed income. In doing so, the court emphasised that the privilege attaches to 'communications not documents' and that as a result, it could apply to copies even though the original documents may not be privileged. This was because copies and originals may have been brought into existence for different purposes, it said. Project pool and depreciation deduction claimed denied In AAT Case [2009] AATA 627, the Administrative Appeals Tribunal confirmed the decision of the Commissioner of Taxation to disallow deductions claimed by a taxpayer in respect of 'project pool' and depreciation expenses claimed in respect of 'a laboratory based project'. The taxpayer was a scientist employed within a hospital and conducted the project from his home unit. In dismissing the taxpayer's application, the tribunal found that the project pool costs were not deductible in the relevant year because they failed the 'taxable purpose' test essentially because the project was still in the experimental stage at that time (and still was, for that matter). In relation to the depreciation expenses claimed, the tribunal found that none of the items were used or installed ready for use for a taxable purpose as defined in s 40-25(7). No exemption from departure prohibition order on humanitarian grounds In AAT Case [2009] AATA 626, Re Lui and FCT, the Administrative Appeals Tribunal affirmed the Commissioner of Taxation's decision to refuse a taxpayer's application for a 'departure authorisation certificate' under s 14U(1) of the Taxation Administration Act. This was despite the taxpayer's claim that he needed to leave the country for a limited time on 'humanitarian grounds' in order to visit his former wife, who was dying in a Hong Kong hospital, and his offer of security over a property in Australia and a floating charge over his worldwide assets. In upholding the Commissioner of Taxation's decision to refuse to grant the certificate, the tribunal found the taxpayer had not satisfied the requirements under s 14U(1)(b) for the issue of a certificate on 'humanitarian' grounds. High Court special leave applications The High Court is due to hear a number of applications for special leave to appeal on 4 September. They include:
Victorian inquiry into state taxation A Victorian parliamentary committee is conducting an inquiry into State Government taxation and debt. The committee will examine the impact and effectiveness of increased State Government taxation (including land tax, payroll tax, stamp duties and government taxes) on certain areas such as development, employment and job creation. It is required to table an interim report by 28 February 2010 and a final report by 30 September 2010. Submissions are invited; the closing date is Friday 2 October. Tax and auditing programs Quarterly tax summary (claim 1 CPD hour upon completion) Download the latest quarter of tax news with this on-demand audio commentary. Covering recent key changes in legislation in one concise hour, including changes to the small business and general business tax break, you'll also receive the transcript as an ongoing reference. Program information - Online audio download Sample audit programs (claim up to 6 CPD hours upon completion) Create well-documented audit plans that meet the relevant legislative requirements. Save yourself time and effort with CPA Australia's revised, updated and extended 'Sample audit programs' toolkit on your desktop. Program information - Online learning manual (PDF 304
kb) Tax update series (claim up to 4 CPD hours per topic) Presented by Kaplan, these regular tax updates keep you up-to-speed with the ever-changing tax legislation. Program information - Brisbane, Bundoora, Melbourne,
Moorabbin, Sydney (PDF 429 kb) More training and events For information on other CPA CPD activities being held throughout Australia please visit the training and events section on our website and use the search facility. To register click onto the activity you wish to attend and follow the prompts. Small business CGT concessions Proposed changes and other current issues is just one session covered in the August edition of Sound education in taxation CD. Also highlighted are the latest income tax rulings and tax cases, and managing Division 7A exposures: new issues. Reserve a copy from the CPA Library. 'Review ponders tight rules on trustees' (Cooper super review releases its first issues paper) AFR [p 7], Wed 26.8.2009 'Super figures may give big picture but lack detail' (Claim that superannuation data recently released by APRA is not relevant to individual investors) AFR [p 29], Wed 26.8.2009 'Confusion reigns over what did or didn't change' (Confusion over changes to eligibility for the Commonwealth seniors health card) AFR [p 33], Wed 26.8.2009 'Leading role for Rudd' (Comment on reform of state taxes) AFR [p 62], Wed 26.8.2009 'Resources tax plan row flares' (Report that peak industry group says the Australian Government tax regime for the sector was flawed and warns of the danger of any new taxes) AFR [p 1], Tue 25.8.2009 'Turnbull shelves his tax review, waits for Henry' (Report that Federal Opposition Leader has shelved the tax review he requested from economist Henry Ergas and will await the Henry review) AFR [p 4], Tue 25.8.2009 'States open to idea of central revenue collecting' (Report that the states welcome a federal takeover of tax collecting) AFR [p 4], Tue 25.8.2009 'Loopholes emerge in share-plan rules' (Comments on lingering uncertainties re the proposed new tax rules on employee share schemes) AFR [p 8], Tue 25.8.2009 'Tax haven to play by rule' (Report that Liechtenstein says it will strengthen its global tax rules) AFR [p 15], Tue 25.8.2009 'Tax end a lure for foreign sales' (Bond experts welcome Government's decision to abolish the 10 per cent withholding tax for offshore investors) AFR [p 23], Tue 25.8.2009 'Definition of SMEs is no small matter' (The definition of a small business can cause confusion for tax and other reasons) AFR [p 49], Tue 25.8.2009 'Federal grab for state and council taxes' (Report that the Assistant Treasurer is pushing for the ATO to take over all taxes, fees and charges imposed by all levels of government; and for an independent board of directors to oversee the ATO) AFR [p 1], Mon 24.8.2009 'Oversight body has wide support' (Comment on the idea of an independent statutory board to oversee the ATO) AFR [p 4], Mon 24.8.2009 'Scammers rise' (The ATO has experienced an increase in scammers and hackers targeting its computer systems) AFR [p 4, Mon 24.8.2009 'Henry flags tax cuts' (Report that Ken Henry says serious consideration of reducing the company tax rate needs to be made) AFR [p 5], Mon 24.8.2009 'Warning as ATO ignores ruling' (Report that trustees should review their family trust deeds after ATO releases a practice statement on the Bamford case) AFR [p 5], Mon 24.8.2009 'Lifelong vision for super reform' (A Mercer Australia paper suggests substantial change to super) AFR [p 46], Mon 24.8.2009 'Tax reform on key agenda' (Report that New Zealand prime minister urges more trans-Tasman co-operation on tax reform) AFR [p 5], 22-23 August 2009 'Imputation survives tax review' (Report that Ken Henry has given strongest signal yet that dividend taxation will not be radically changed) AFR [p 9], 22-23 August 2009 'US indicts Swiss advisers' (US Justice Department has indicted a Swiss banking executive and a lawyer re tax evasion) AFR [p 20], 22-23 August 2009 'Kiss foreign tax benefits goodbye' (Comment on expatriate tax changes) AFR [p 40], 22-23 August 2009 'The retirement outlook due for reality check' (Comment on planning for retirement, including possible effects of the Henry tax review) AFR [p 41], 22-23 August 2009 'Check the rules before starting' (Starting a pension from a DIY super fund) AFR [p 43], 22-23 August 2009 'Professions snared in awards net' (Report that employers are concerned that the Australian Government's award modernisation will extend awards and regulation to white-collar workers such as accountants, solicitors and stockbrokers) AFR [p 1], Fri 21.8.2009 'Super funds must cut $2bn in fees' (Financial Services Minister says super funds must cut fees) AFR [p 3], Fri 21.8.2009 'US tax win breaks Swiss bank secrecy' (Swiss bank UBS agrees to give information to the IRS on more than 4,400 US clients suspected of tax evasion) AFR [p 16], Fri 21.8.2009 'Reform of dividend timing near' (Report that Australian Government is considering changing the rules relating to when dividends can be paid) AFR [p 20], Fri 21.8.2009 'Super funds association attacks regulator's data' (Report that ASFA has warned that APRA's data on top performing super funds was potentially misleading) AFR [p 58], Fri 21.8.2009 'Henry keen to avoid race to the bottom' (Report that Ken Henry flags an overhaul of state taxes and a move to a more centralised tax system) AFR [p 5], Thur 20.8.2009 'Hardie wins paper fight' (Company wins claim for legal professional privilege of documents in tax case) AFR [p 10], Thur 20.8.2009 'Share scheme bill a shambles' (AFR Editorial critical of the Australian Government's tax moves on employee share schemes) AFR [p 62, Thur 20.8.2009 'Long, hard look needed at employee share schemes' (Opinion that employee share schemes are still at risk because of rushed legislation) AFR [p 63], Thur 20.8.2009 'Super review to target conflicts of interest' (The Australian Government's super system review will look at rules for managing conflicts of interest) Australian [p 5], Wed 26.8.2009 'UK tax rates trigger hedge funds exodus' (Claim that hedge fund managers and other financial services professionals are leaving the UK following the UK Government's plans to raise the top personal tax rate to 51 per cent) Australian [p 23], Wed 26.8.2009 'Accounting changes add up to turf war' (Responses to an accounting body's plan to offer an alternative pathway to an accounting degree as a prerequisite for the body's professional level training) Australian [p 29], Wed 26.8.2009 'See a problem, commission a solution' (Report of the multiple government reviews underway) Australian [Wealth, p 8], Wed 26.8.2009 'Best business at arm's length' (Article on DIY funds running a land development business - warns on super rule limitations) Australian [Wealth, p 9], Wed 26.8.2009 'Rankings a poor form guide' (Comment on APRA's super fund performance data) Australian [Wealth, p 12], Wed 26.8.2009 'Contributions tax-deductible if criteria are met' (Article on employees claiming deductions for personal super contributions and the conditions to meet) Australian [Wealth, p 12], Wed 26.8.2009 'Former treasurer defends super role' (Report of a Victorian Supreme Court case concerning a property transaction involving a superannuation fund) Australian [p 2], Tue 25.8.2009 'Push on resource rent tax' (Report that the Henry tax review is considering a new federal resource rent tax to replace state-based mining royalties) Australian [p 1], Mon 24.8.2009 'Consultant urges super makeover' (Opinion that short-term incremental changes could undermine future of super savings) Australian [p 6], Mon 24.8.2009 'A super revelation' (Opinion that APRA's publication of super performance data helps rebuild investors' confidence in super) Australian [p 16], 22-23 August 2009 'Withholding tax to be lifted to sweeten federal bonds' (Government proposes to remove interest withholding tax on federal debt securities) Australian [p 33], 22-23 August 2009 'League tables "show up financial planners"' (Calls by industry super funds based on APRA statistics to stamp out commissions and conflicts of interest) Australian [p 4], Fri 21.8.2009 'Nationals Senator urges lower taxes for the bush' (Report that a Nationals Senator has called for regional residents to be taxed lower than urban residents) Australian [p 5], Fri 21.8.2009 'Premiers consider state-based income tax plan' (Report that some state governments have indicated support for a state-based income tax) Australian [p 5], Fri 21.8.2009 'Party looks at super shift for aged' (Report that the Nationals may consider proposal to require employers of mature-age workers to continue paying money into super beyond age 75) Australian [p 5], Fri 21.8.2009 'Reconsider super contributions: Bowen' (Report that the Minister for Financial Services, Superannuation and Corporate Law has indicated that it is time for a national debate to reconsider level for super) Australian [p 19], Fri 21.8.2009 'Well feathered ... plucked?' (Article featuring interview with the Minister for Financial Services, Superannuation and Corporate Law discussing possible changes to super policy- other articles cover profile to superannuation sector in the next 12 months and 12 super tips for retirement) Australian [The Deal, Superannuation Special pp 11-22], August 2009 Vol 2 / No 7 'State tax in reform mix, says Henry' (Report that the Henry tax review is considering a new inter-governmental agreement between the Commonwealth and state and territory governments) Australian [p 3], Thur 20.8.2009 'IMF calls for gains tax on property' (According to the International Monetary Fund, the family home should be subject to capital gains tax and mortgage interest payments should be deductible) Australian [p 5], Thur 20.8.2009 'Forum hears plan to level housing taxes' (Submissions to the Henry tax review have questioned the capital gains tax main residence exemption and land tax exemption for the family home) Australian [p 5], Thur 20.8.2009 'Keep all options on the tax review table' (Opinion that the Treasurer is wise to not rule any possible tax changes as part of the Henry tax review, including a capital gains tax on the family home) Australian [p 13], Thur 20.8.2009 'Tax probe targets more banks' (Report that wealthy US taxpayers under a tax evasion amnesty program have disclosed other European banks where their accounts are being held) Australian [p 21], Thur 20.8.2009 'UBS to hand over tax names' (Report that a Swiss bank will hand over some 4450 names of US account holders as part of a tax evasion investigation settlement) Australian [p 21], Thur 20.8.2009 CPA Australia seeks your input on issues it should take up on the members' behalf. 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