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March 2020 Tax tips, traps and updates BUSINESS TAX

Tax Guru to accountants shares his monthly tax tips . Let me know if you would like to be put on distribution list or whether you would like to be referred to Leo.

Small business car parking exemption

Car parking benefits provided by small business employers are exempt if either:

• the employer was a small business for the last income year before the relevant FBT year
• the employer’s total gross income (before any deductions) for the last financial year before the relevant FBT year was less than $10 million.

The car parking must not be provided in a commercial car park, and the employer can’t be either:

• a government body
• a listed public company
• a subsidiary of a listed public company.

Reportable tax positions 

The ATO is currently seeking feedback and comments about the implementation of Reportable Tax Position (RTP) Schedule for large private companies and large private corporate groups in the 2021 income year.

Currently only large public and multinational companies are required to complete and lodge an RTP Schedule disclosing their most contestable and material tax positions.

Insurance payouts

Trading Stock: The amount you receive from an insurance payout for damaged or destroyed trading stock, e.g. because of a natural disaster, must be included in your tax return.

GST: Provided that you correctly informed your insurer of your GST status when you took out your insurance, you do not have to pay GST on your insurance payout. You may be entitled to GST credits for any purchase that you make with the insurance payout.

Business premises: An insurance payout for damaged or destroyed business premises will have tax consequences.

You will need to work out if you have a capital gain or capital loss to include in your tax return. If you are a small business operator, you may be entitled to small business capital gains tax (CGT) concessions.

If you receive an insurance payout for repairs, the amount you receive should be included in your assessable income.

Depreciating assets: If you receive an insurance payout for damage or destruction of a depreciating asset that you used to produce income, such as a car or office equipment, it will have tax consequences.

You need to compare the amount of the insurance payout with its book value at the time it was destroyed (its ‘adjustable value’). If the payout is more than the book value, the excess is included in your assessable income. If the payout is less than the book value, you can claim a deduction for the difference.

If you used the asset for personal use and for producing income, the amounts need to be apportioned.  

For involuntary disposals of assets, e.g. because of a natural disaster, you can buy a replacement asset and offset the balancing adjustment amount against it.

If a destroyed asset that was used solely to produce assessable income was in a low-value pool, you reduce the closing pool balance by the amount of the insurance payout you receive.

If an asset was used partly to produce assessable income and was in a low-value pool, you:

• multiply the insurance payout you receive for it by the percentage that it was used to produce assessable income
• subtract the result of this from the closing pool balance.


ETP Caps

ETPs are concessionally taxed up to a certain limit, or ‘cap’. The top rate of tax applies to amounts in excess of the cap.

There are two caps:

• the ETP cap, which is
indexed each year (in 2019–20 it’s $210,000)
reduced by any earlier ETPs paid in the same income year, and by any earlier ETPs for the same termination regardless of when they are paid. 
• the whole-of-income cap, which is
reduced by any other taxable payments (such as salary and the taxable components of any earlier ETPs) received by the employee in the same income year.

Which cap applies depends on the type of payment.

Apply the ETP cap to ‘excluded payments’:

• genuine redundancy and early retirement scheme payments that exceed the tax-free limit (only the amount in excess of the limit is subject to the cap)
• payments that would have been for a genuine redundancy had the employee not reached their retirement age, or Pension age
• invalidity payments (only the amount not included in the tax-free component is subject to the cap)
• compensation payments principally for personal injury, unfair dismissal, harassment or discrimination
• death benefit ETPs.

For all other ETPs, apply the lesser of the ETP cap and the whole-of-income cap. These are called ‘non-excluded payments’ and include:

• golden handshakes and gratuities
• non-genuine redundancy payments (unless it would have been a genuine redundancy had the employee not reached their retirement age, or Pension age)
• payments in lieu of notice
• payments for unused sick leave or unused rostered days off.

In the majority of cases the whole-of-income cap will be less, so it will apply to these payments.

The only exception is if you make multiple payments to the employee for the same termination. The ETP cap is reduced by the other payments – even if they occur in different income years – and could then be lower than the whole-of-income cap.

The rate of tax on ETPs up the cap is 15%, plus Medicare levy, if the person has reached their preservation age on the last day of the year of income the payment is received, otherwise it is 30%, plus Medicare levy. The amount over the cap is taxed at 45%, plus Medicare levy.

Foreign tax offsets

The High Court has not allowed the taxpayer’s special leave application against the FITO (foreign income tax offset) decision in Burton v COT (Commissioner of Taxation).

In effect, the primary judge and Full Federal Court agreed with the Commissioner’s decision to allow only 50% of United States (US) tax as a FITO amount as only 50% of the US sourced capital gain was included as an assessable net capital gain due to the CGT 50% discount.



Insurance payouts

Any insurance payout you receive for your family home (main residence), e.g. because of a natural disaster, is not taxable. These payments don’t have to be included as income in your tax return.

Insurance payouts for personal assets are generally not taxed. For example, insurance payouts for damaged or destroyed household items, furniture, electrical goods, boats and private cars are not taxed.

There are special rules for personal assets that cost you more than $10,000, or for collectables that cost more than $500 such as paintings, jewellery, antiques or coins. However, these special rules will only apply if the insurance payout exceeds the original cost of the asset.

An insurance payout for a property that was used to produce income will have tax consequences. For example, the property is a rental property of if part of your home is used for a home business or you have rented out a room. The insurance payout amount will be relevant when you work out if you have a capital gain or capital loss to include in your tax return. If you are a small business operator, you may be entitled to small business capital gains tax (CGT) concessions.

Work cars: If you used your car for income producing purposes, you will need to compare the insurance payout amount with the book value of the car at the time it was destroyed (a balancing adjustment).

If you claimed your car expenses using the logbook method, your balancing adjustment amount needs to be reduced by the percentage that you used the car for personal use.

If you only used the cents per kilometre method since you began using the car, no balancing adjustment arises, as this method takes the decline in value into account in the calculation.

Foreign income

All foreign income, deductions and foreign tax paid must be translated (converted) to Australian dollars before including it in your return. From 1 July 2003, there are specific rules that tell you which exchange rate to use to convert these amounts. Generally, these require amounts to be converted at the exchange rate prevailing at the time of a transaction, or at an average rate.

If you require a foreign exchange rate for a currency not listed in the ATO schedule, you may use any reasonable externally sourced exchange rate for that currency.


Foreign resident CGT

On 12 December 2019 the Government passed an amendment to strengthen the foreign resident capital gains tax (CGT) regime. As part of this, foreign resident taxpayers that have indirect interests in entities that hold interest in Australian real property assets in a disaggregated manner will now need to apply the principal asset test (PAT) on an associate inclusive basis.

The reforms apply from 9 May 2017 and taxpayers will need to review any tax returns lodged from that date to determine if they have correctly complied with the PAT, and seek amendments if needed.

If an amendment is required and a taxpayer actively seeks to amend assessments within a reasonable timeframe after the law change, no tax shortfall penalties will be applied and any interest accrued will be remitted to the base interest rate.


Crowd Funding

The ATO has warned that some crowdfunding models may attract GST, particularly the reward-based model.

Under a reward-based model, the promoter provides goods, services or rights in return for payments by funders. The promoter will have a GST liability if a taxable supply is made to the funder.

If the promoter makes a taxable supply, the funder is entitled to an input tax credit if the funder is registered for GST and the acquisition is made for a creditable purpose. Generally, no input tax credit is available if the acquisition relates to the funder making input taxed supplies. The intermediary makes a taxable supply of services to the promoter.

The donation-based model would not attract GST.

Margin scheme

The ATO has released MSV 2020/D1 on the valuation requirements for the GST margin scheme.

There are four methods provided in MSV 2020/D1:

• Method 1: valuation by a *professional valuer
• Method 2: valuation based on the consideration received by the supplier under the contract of sale
• Method 3: State Government or Territory Government department valuation
• Method 4: valuation obtained by the Commissioner in certain circumstances

Generally Method 1 applies to determine the value of real property on 1 July 2000. Under Method 1, the valuation must be made in accordance with the following requirements:

(1) the valuer must be a *professional valuer;

(2) the valuation must be in writing;

(3) the valuation must determine the market value of the interest, unit or lease at the valuation date;

(4) the valuation must be made in a manner that is not contrary to the professional standards recognised in Australia for the making of real property valuations;

(5) the valuation must include a signed certificate which specifies:

(a) a full description of the property being valued;

(b) the applicable valuation date;

(c) the date the valuer provides the valuation to the supplier;

(d) the market value of the property at the valuation date;

(e) the valuation approach and the valuation calculation; and

(f) the name and qualifications of the valuer;

(6) if the interest, unit or lease has been supplied by the Commonwealth, a State or a Territory; and

(a) the supplier has held the interest, unit or lease since before 1 July 2000;

(b) there were no improvements on the land or premises in question as at 1 July 2000; and

(c) there are improvements on the land or premises in question on the day on which the taxable supply takes place,

the valuation must be made as if no improvements had been made at the date of the taxable supply; and

(7) the valuation must be made by the time specified which is generally the due date for lodgement of the Business Activity Statement for the tax period to which the GST payable on the taxable supply of the real property is attributable., or such further period allowed by the Commissioner.


International investigation

The ATO recently took part in an international ‘day of action’ that has seen promoters and participants of an offshore tax evasion scheme put on notice.

Along with its partners from the United States, United Kingdom, Canada and the Netherlands, the action was part of a series of multi-country investigations into a financial institution located in Central America. It is believed the institution may be facilitating money laundering and tax evasion for a global customer base using a range of products and services.

Several hundred Australians are suspected of participating in these arrangements and itare currently proceeding with multiple investigations with the support of the Australian Criminal Intelligence Commission (ACIC).


The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (the MLI) entered into force for Australia on 1 January 2019. The ATO is preparing a synthesised text for each of Australia’s tax treaties that are modified by the MLI.

A synthesised text helps users of the tax treaty understand how the MLI modifies the particular tax treaty. It does not constitute a source of law. The authentic legal texts of the tax treaty and the MLI take precedence and remain the legal texts applicable.

Transfer pricing

The OECD a report Transfer Pricing Guidance on Financial Transactions: Inclusive Framework on BEPS: Actions 4, 8-10.

This report contains transfer pricing guidance on financial transactions, developed as part of Actions 4, 8-10 of the BEPS Action Plan. This report is significant because it is the first time the OECD Transfer Pricing Guidelines includes guidance on the transfer pricing aspects of financial transactions, which will contribute to consistency in the interpretation of the arm’s length principle and help avoid transfer pricing disputes and double taxation


Testamentary Trusts

The Treasury Laws Amendment (2019 Measures No. 3) Bill has been introduced into Federal Parliament.

The Bill is to amend the Income Tax Assessment Act 1936 to provide that the tax concessions available to minors for income from a testamentary trust apply only in respect of income generated from assets of the deceased estate transferred to the testamentary trust or accumulations of income or property so transferred.

The amendments are to apply in relation to assets acquired by or transferred to the trustee of a testamentary trust estate on or after 1 July 2019.

The Bill is also to ensure that only minor beneficiaries included in the class of beneficiaries by the deceased may receive excepted trust income.

Illegal Phoenixing

The Treasury Laws Amendment (Combating Illegal Phoenixing) Bill 2019 was passed by the Senate on 5 February 2020.

The Bill is to amend the Corporations Act 2001 to introduce new criminal offences and civil penalty provisions for company officers that fail to prevent the company from making creditor-defeating dispositions and other persons that facilitate a company making a creditor-defeating disposition and to allow liquidators to apply for a court order in relation to a voidable creditor-defeating disposition. 

Venture capital 

The Treasury Laws Amendment (2018 Measures No.2) Bill 2019 has passed both Houses of Parliament.

Included in the Bill are provisions to ensure the venture capital taxing provisions, the VCPL (venture capital limited partnership)and ESVCPL (early stage venture capital limited partnership) provisions, and early stage investor tax offset provisions operate as intended. 

The VCLP regime supports investment in venture capital entities at the high-risk, start-up and expansion stages that would otherwise have difficulty in attracting investment through normal commercial means. A VCLP is taxed on a ‘flow-through’ basis rather than being treated as a company for tax purposes like other limited partnerships resulting in the partners rather than the ‘partnership’ being taxed. One of the key benefits is that certain foreign partners are exempt from income tax on capital and revenue gains from disposals of eligible investments made by the VCLP, with corresponding losses also being disregarded. In addition, amounts received by general partners for their successful management of the partnership’s investments (‘carried interests’) are taxed on capital account, thus potentially entitling them to the CGT discount if they have been a partner for over 12 months and meet the other eligibility requirements for the CGT discount.

The ESVCLP regime provides additional tax concessions for high-risk start-up entities (with a value of no more than $50 million). Like VCLPs, ESVLPs are taxed on a ‘flow-through’ basis. However, the tax concessions are more generous than for VCLPs given the higher degree of risk involved. Both Australian and foreign investors are exempt from income tax on capital and revenue gains from disposals of investments made by ESVCLPs, with corresponding losses also being disregarded. Income derived from the partnership’s investments, such as dividends, is also exempt from income tax.

Early stage investors tax offset. This incentive allows eligible investors that acquire shares in an innovation company in an income year to receive a carry forward tax offset for that income year equal to 20 per cent of the amount paid for the shares. However, the total amount of this offset to which an entity and its affiliates is entitled in an income year cannot exceed $200,000.

Bushfire tax assistance

The Treasury Laws Amendment (2019-20 Bushfire Tax Assistance) Bill has passed both Houses of Parliament to make disaster relief payments being made to individuals and businesses impacted by the bushfires tax exempt.

The exemption extends to payments such as:

• Disaster Recovery Allowance payments made to individuals; and
• Payments that would otherwise be taxable under the Disaster Recovery Funding Arrangements, such as grants that may be made to small businesses and primary producers.

The legislation also allows taxpayers to claim income tax deductions for donations to two organisations established by the Business Council of Australia in response to the bushfiresThe Australian Volunteers Trust and The Community Rebuilding Trust.

The legislation also provides tax-free financial support to volunteers in the New South Wales Rural Fire Service who are employed by small or medium businesses and had volunteered for an extended period to assist in combatting the bushfires.


SMSF investment strategies

The ATO has release a new Guide Your self-managed superannuation fund (SMSF) investment strategy

The Guide’s overview provides:

• Your investment strategy is your plan for making, holding and realising assets consistent with your investment objectives and retirement goals. It should set out why and how you’ve chosen to invest your retirement benefits in order to meet these goals.
• The superannuation laws require that you must prepare and implement an investment strategy for your self-managed super fund (SMSF) which you must then give effect to and review regularly.

In relation to diversification, the Guiderelevantly provides:

• While a trustee can choose to invest all their retirement savings in one asset or asset class, certain risks such as return, volatility and liquidity risks can be minimised if a trustee chooses to invest in a variety of assets. This is called a diversified portfolio which helps to spread investment risk.
• Investing the predominant share of your retirement savings in one asset or asset class can lead to concentration risk. In this situation, your investment strategy should document that you considered the risks associated with a lack of diversification. It should include how you still think the investment will meet your fund’s investment objectives including your fund’s return objectives and cash flow requirements.
• Asset concentration risk is heightened in highly leveraged funds, such as where the trustee has used a limited recourse borrowing arrangement to acquire the asset. This can expose members to a loss in the value of their retirement savings should the asset decline in value. It could also trigger a forced asset sale if loan covenants (for example, the loan to valuation ratio) are breached.
• Super laws also require trustees to invest in accordance with the best interest of all members. You need to be aware of any legal risks that may result from investing in one asset class.

Early withdrawals 

The ATO has warned withdrawing super early unless meeting a condition of release is illegal. Generally, individuals can only withdraw their super when they reach retirement.

There are limited circumstances where and individual can legally withdraw their superearly, such as specific medical conditions or experiencing severe financial hardship.


The ATO has released SPR 2020/D1 on in-house asset issues for Intermediary LRBAs (limited recourse borrowings arrangements) for SMSFs.

The Draft Ruling covers in the in-house asset issues for Intermediary LBRAs where a trust, the Holding Trust, is established by a superannuation fund as sole beneficiary of the trust to purchase a single acquirable asset by way of a LRBA mortgage entered into by the trustee of the Holding Trust. The superannuation fund is absolutely entitled to any income of the Holding trust less fees, costs charges and expenses. Personal guarantees may be given for the LRBA.

The Draft Ruling provides the superannuation fund investment in the Holding Trust is not an in-house asset of the fund unless the acquirable asset would be an in-house asset of the fund. 

The Draft Ruling, when finalised. means SMSFs can enter into LRBAs using the structure described where the Holding Trust borrows the money to acquire an asset such as residential or commercial real estate on trust for the superannuation fund.

New residential property

SMSFs purchasing new residential property or potential residential land have a GST withholding obligation.

Purchasers, who have a GST withholding obligation, must complete and lodge two forms:

• when you sign the contract, lodge Form one: GST property settlement withholding notification using information from the supplier notification (see below)
• when the property settleslodge Form two: GST property settlement date confirmation, and pay the GST withheld amount.

Transfer balance cap

The All Groups Consumer Price Index (CPI) figure for the December 2019 quarter has been announced, it is 116.2. Indexation of the general transfer balance cap would only have occurred on 1 July 2020 if the All Groups CPI figure for the December quarter was 116.9 or higher.

We now anticipate the general transfer balance cap is likely to be indexed on 1 July 2021.

Posted on March 7, 2020

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