19 November 2009
Editor: Vinh Tuan Tran
|Trick or treat? Deductibility of self education expenses||¶1091|
|Private health insurance Bills (No 2)||¶1092|
|Bill consolidating secrecy & disclosure provisions||¶1093|
|Progress of Bills||¶1094|
|Tax agent services regulations||¶1095|
|Phoenix activity reforms||¶1096|
|Review into ATO audits||¶1097|
|Committee supports DTAs with NZ, Jersey and Belgium||¶1098|
|ATO IDs issued||¶1101|
|Restraining order “unconstitutional”||¶1102|
|No legal privilege||¶1103|
|ConnectEast impact statement||¶1104|
|Class rulings issued||¶1105|
|SMSF assessments upheld||¶1106|
|SuperSystem review||¶1107–; ¶1108|
|Goods and services tax|
|Second-hand goods acquired for “sale”||¶1109|
|ASIC to regulate trustee companies (NSW)||¶1110|
|Duty relief for “top-hatting” restructures (Qld)||¶1111|
|ACT revenue Bills||¶1112–; ¶1113|
|Duty refund on certain insurance policies (ACT)||¶1114|
|Due dates in December||¶1115|
Contributed by Associate Professor Justin Dabner, Law School James, Cook University, Cairns
In “Flood gates open on self-education expenses” (see CCH Tax Week ¶380 (2009)) this commentator expressed the concern that possibly the Federal Court had perpetrated a cruel April Fools’ joke by handing down a decision on 1 April that permitted those in receipt of the Youth Allowance and similar government largess to claim a tax deduction for their education expenses. Now the full court on 4 November (FC of T v Anstis 2009 ATC ¶20-142), by emphatically dismissing the Commissioner’s appeal, has confirmed the availability of such deductions. Had the decision been handed down four days earlier and corresponded with Halloween maybe the trick analogy could have been extended. To the contrary, there are now many students who have been provided with a treat. One can expect that the requests for amended assessments will soon be in the mail!
The background to the case and the facts were considered in detail in the earlier article. Essentially with the removal of the tax exemption for certain government social security payments, including Youth Allowance and Austudy, the question arose as to whether self-education expenses incurred by a recipient of such payments would be deductible. In Taxation Ruling TR 98/9 the Tax Office expressed the view that self-education expenses incurred by a recipient of one of these (now) assessable payments remained non-deductible because they could not be said to be incurred in deriving assessable income in the nature of the government payments. Rather, any expenditure was incurred (typically) in connection with the student’s future employment and, therefore, was incurred too soon in time to be regarded as having been incurred in deriving assessable income.
It was this aspect of the ruling that was tested in the Anstis case. During the 2005/06 year the taxpayer was enrolled as a full-time student undertaking a teaching degree. In her tax return for that year she declared that she had received $14,946 from working as a part-time sales assistant, as well as Youth Allowance of $3,622. She did not declare the receipt of any income from having worked as a teacher.
To be eligible for, and to continue to receive, Youth Allowance under the Social Security Act 1991 (the SSA), the taxpayer had to be enrolled in a course of education at an educational institution, undertaking at least three-quarters of the normal amount of full-time study in the relevant course and, in the Social Security Secretary’s opinion, making satisfactory progress toward completing the course.
At issue was whether the taxpayer, as a recipient of Youth Allowance, was entitled to deduct self-education expenses of $920 under s 8-1(1)(a) of ITAA 1997. These consisted of travel expenses other than to university, supplies for children during teacher rounds, student administration fees, depreciation of a computer, textbooks and stationery. The Commissioner disallowed the deductions claimed and the taxpayer’s subsequent objection. On review, the AAT affirmed the Commissioner’s objection decision and the taxpayer then appealed to the Federal Court.
In allowing the taxpayer’s appeal, Ryan J found that, unlike the travelling expenses in Lunney v FC of T (1958) 100 CLR 478, the expenses in this case were not outlaid to put the taxpayer in a position to receive the Youth Allowance; rather, they were incurred as a necessary incident of pursuing a particular course of study. Moreover, because the expenditure by the taxpayer was in the same tax year as, or otherwise close in time to, the receipt of the Youth Allowance, it could not be said to have been incurred at a “point too soon” in the sense suggested in FC of T v Maddalena 71 ATC 4161.
His Honour noted that, although almost all of the authorities on the deductibility of educational expenses have involved an examination of the relationship between those expenses and the receipt of income from employment in the future, that relationship was not exhaustive of the ways in which fees paid to an educational institution or the cost of text books or other related expenses may be incurred in gaining or producing assessable income as required by s 8-1. The derivation of income in the form of Youth Allowance exemplified one of the alternative ways in which the occasion of the outgoing was to be found in what was productive of the assessable income.
Thus, paraphrasing the principle stated in Ronpibon Tin NL and Tongkah Compound NL v FC of T  HCA 15; (1949) 78 CLR 47, it could be said that what was productive of assessable income was the taxpayer having qualified for the receipt of Youth Allowance and having preserved that qualification throughout the relevant period by satisfying the activity test. As the relevant requirements could only be satisfied by the expenditure of money, then that expenditure was incurred in gaining or producing the Youth Allowance within the meaning of s 8-1(1)(a). That the taxpayer’s ultimate purpose or motive in undertaking the course was to acquire a qualification leading to future employment as a teacher was irrelevant to the characterisation of the expenditure.
The Commissioner contended that his Honour erred in concluding that the various eligibility and qualifying requirements for Youth Allowance could only be satisfied by the expenditure of money and that, in consequence, the expenditure was incurred in gaining or producing the Youth Allowance within the meaning of s 8-1. Such expenditure would, in any event, have been incurred by the taxpayer in electing to undertake her course of study, irrespective of the payment of Youth Allowance. Put another way: the taxpayer incurred the expenditure in undertaking her studies. She undertook those studies to obtain a degree and thereby qualify to teach. She did not undertake those studies to obtain the Youth Allowance but only became entitled to payment of the Youth Allowance (incidentally) because she had first satisfied the requirements of the SSA.
The Commissioner also submitted that Ryan J erred in distinguishing Lunney and Maddalena. The Commissioner submitted that the taxpayer’s activities as a student in fulfilling the requirements for payment of Youth Allowance were qualifying activities. They were not activities productive of assessable income; rather, they were akin to the activity of travelling from home to work to put oneself in a position, as in Lunney, to earn assessable income. Expenditure incurred in the course of carrying out these qualifying activities was, therefore, not incurred in the course of producing assessable income but at “a point too soon”, as in Maddalena.
In a short joint judgment the full court comprehensively dismissed the Commissioner’s appeal. The Commissioner’s characterisation of the taxpayer’s activities as a student (and expenditure on such) as qualifying activities for the Youth Allowance income was to be rejected as an exercise in semantics. The taxpayer in this case was paid to undertake the course in which she was enrolled on condition that she did so in a particular manner — and to a particular standard — to satisfy the Social Security Secretary that she was making satisfactory progress towards completing the course. The primary judge did not err in distinguishing Lunney from the case before him.
The court opined that this argument that the expenditure related to qualifying activities to derive the Youth Allowance would mean that if a person was engaged to undertake an activity (not constituting a business) on condition that they would only be paid if they carried it out in a particular manner and completed the activities within say, a month, any non-capital expenditure they incurred to complete the activity in accordance with those conditions would not be deductible because the activities and expenditure were qualifying in character and not incurred in the course of producing assessable income. In the court’s view this could not be right (at para 42).
Further, the Commissioner’s “other way” of looking at the matter introduced a purpose test as a criterion for deductibility under the first limb of s 8-1, that is the taxpayer undertook her studies for the purpose of obtaining a degree and thereby qualifying to teach; she did not undertake those studies and incur the expenditure to obtain the Youth Allowance. While that may be true, the first limb of s 8-1 was concerned with whether the outgoing was incurred in the course of deriving assessable income, not whether the outgoing was incurred for the purpose of deriving assessable income: FC of T v Payne 2001 ATC 4027.
In the court’s view, all the expenditure in issue was incurred by the taxpayer in the course of undertaking her course of study for which she was enrolled as a full-time student. The income-producing activity commenced with the enrolment of the taxpayer at the Australian Catholic University and continued throughout the period in respect of which the allowance was paid. There was nothing in the evidence to suggest that any part of the expenditure claimed was incurred prior to, or as a condition of, enrolment so as to lack the requirement of contemporaneity imposed by Maddalena. So viewed, the expenditure was incurred in the course of gaining or producing the taxpayer’s assessable income within the first limb of s 8-1.
The taxpayer in Anstis was well represented by her father, a solicitor, against Senior Counsel and the entire talent of the Tax Office’s Legal Services Branch. In the earlier article I had doubted whether their run would continue and predicted that the full court would allow the Commissioner’s appeal on the basis, possibly, that the overriding purpose of the expenditure related to future employment. The full court decision has emphatically rejected any reference to a purpose test in the application of the first limb of s 8-1 (as distinct from the second limb).
In the event, the taxpayer’s victory raises the question as to whether the Tax Office will seek leave to appeal to the High Court. At the risk of being proved wrong again I suspect that a leave application or a subsequent grant of leave will be unlikely given that the High Court’s recent decisions on s 8-1 such as Spriggs v FC of T; Riddell v FC of T 2009 ATC ¶20-109 and, most relevantly, FC of T v Day 2008 ATC ¶20-064 suggest that the court is currently adopting a broad and liberal approach to interpreting the positive limbs of that provision. The full court decision in Anstis is consistent with this formidable jurisprudence.
More likely I suggest is that the Tax Office, armed with statistics as to the potential loss of government revenue arising from the availability of deductions now available to students in receipt of government payments, may recommend to Treasury the insertion of a provision in the legislation specifically denying self-education deductions (possibly akin to s 51AAA of ITAA 1936).
There may, however, be good policy reasons for not amending the legislation and, rather, allowing such deductions. The amount of lost revenue might not be that significant because the recipients of these government payments will, by virtue of the income tests, be low income earners and paying tax at the lowest rate or if at all courtesy of the tax-free threshold and tax offsets including the low income tax offset (s 159N of ITAA 1936) and beneficiary rebate discussed below. Admittedly there may be the rare case of a student still within the income tests entitling them to government assistance but with “considerable” other income (maybe up to around $27,000 pa on a quick review of the tests) and substantial self-education deductions primarily in the form of travel, accommodation and living expenses. However this is likely to be a student who otherwise lives in a regional location and so is probably deserving of some extra encouragement and assistance.
On the other hand, it should be appreciated that the absence of a tax exemption for government social security payments in the nature of Youth Allowance and Austudy is mitigated by the availability of a beneficiary rebate for such payments (s 160AAA(3) of ITAA 1936) designed to ensure that a recipient with no other taxable income will pay no tax. The effect is, essentially, a form of exemption with progression which ensures that while the government income support is not taxed it is taken into account in ascertaining the tax rate applicable to other income derived by the recipient (now largely redundant with the increase in the tax rate thresholds). As the rebate is worked out on gross not net allowances (see reg 152 ITR 1936) the result is that self-education expenses will effectively be deducted against other income and not the Youth Allowance or Austudy. (Thus an alternative reform option Treasury might consider would be to restrict the rebate to the net allowance.)
While students might now have an even greater incentive to seek to structure their affairs to try to access a government allowance the incidence of this is likely to be no more than it previously was. The opportunity for some students with other income sources to deduct self-education expenses against their other income will be just a fortunate incidence of the receipt of the allowance. Even if any excess of self-education expenses over the applicable allowance is properly to be viewed as a loss this “self-education loss” should not be subject to quarantining under the provisions of Div 35 of ITAA 1997. As discussed in the earlier article, the application of this Division will be problematic on the basis that it would be difficult to suggest that the student was carrying on a business (see s 35-5)!
Finally, this decision may serve to further support the tax position that has been adopted by many business school students to the chagrin of law school students. As I understand it, many business students concurrently employed in, say, an accounting firm, argue that expenditure connected with their studies is tax deductible on the basis that there is a sufficient connection with their current income earning activities (cf Taxation Ruling TR 98/9, para 41). Typically they can marshal letters from their employer stating that their employment (as, say, a bookkeeper, trainee accountant or accounting clerk) is conditional on them enrolling in and completing their degree. It just so happens, of course, that the degree is also a necessary prerequisite to their qualification as a chartered accountant.
Law students working as conveyancing clerks, paralegals or secretaries within law firms have, arguably, a more difficult task embracing this argument. It is typically difficult to suggest (with a straight face) that the undertaking of the degree is connected with their current income earning activities rather than with a view to a future qualification as a lawyer. The decision in Anstis may further support the case of the business student but self-education deduction claims by law students remain tenuous (unless, of course, they can get that letter)!
A package of private health insurance Bills has been reintroduced into parliament to give effect to the three “Private Health Insurance Incentive Tiers” announced in the 2009/10 Federal Budget.
The Bills have been reintroduced as a consequence of the Senate declining to give the Bills previously introduced a second reading (see CCH Tax Week ¶883 (2009)).
The package of Bills comprises:
• Fairer Private Health Insurance Incentives Bill 2009 (No 2)
• Fairer Private Health Insurance Incentives (Medicare Levy Surcharge) Bill 2009 (No 2)
• Fairer Private Health Insurance Incentives (Medicare Levy Surcharge — Fringe Benefits) Bill 2009 (No 2).
The Bills propose to reduce the amount of private health insurance rebate an eligible taxpayer with a complying private health insurance policy is entitled to when they have income for surcharge purposes above the relevant Medicare levy surcharge threshold. Set out below are details of the Private Health Insurance Incentive Tiers:
• Tier 1: singles earning between $75,001 and $90,000 and couples/families earning between $150,001 and $180,000 will receive a 20% private health insurance rebate if they are aged up to 65 years (25% if they are aged over 65, and 30% if they are aged 70 years or over)
• Tier 2: singles earning between $90,001 and $120,000 and couples/families earning between $180,001 and $240,000 will receive a 10% private health insurance rebate if they are aged up to 65 years (15% if they are aged over 65, and 20% if they are aged 70 years or over)
• Tier 3: singles earning above $120,000 and couples/families earning above $240,000 will not receive any private health insurance rebate, regardless of age.
For families with more than one dependent child, the relevant threshold is increased by $1,500 for each child after the first. In future years, the singles thresholds will be indexed to average weekly ordinary time earnings and increased in $1,000 increments (rounding down). The couples/family threshold will be double the relevant singles threshold.
The Bills also propose to increase the rate of Medicare levy surcharge that certain taxpayers are liable for when they have income for surcharge purposes above specified thresholds and do not have complying health insurance. The proposed new rates are listed below:
• singles earning between $90,001 and $120,000 and couples/families earning between $180,001 and $240,000 will be liable for a 1.25% Medicare levy surcharge
• singles earning above $120,000 and couples/families earning above $240,000 will be liable for a 1.5% Medicare levy surcharge.
For families with more than one dependent child, the relevant threshold is increased by $1,500 for each child after the first. In future years, the singles thresholds will be indexed to average weekly ordinary time earnings and increased in $1,000 increments (rounding down). The couples/family threshold will be double the relevant singles threshold.
These amendments are proposed to apply to income years starting on or after 1 July 2010.
See the CCH Australian Federal Tax Reporter at ¶860-100.
Measures to consolidate and standardise the existing secrecy and disclosure provisions found in 18 taxation law Acts into a single framework have been introduced into parliament.
The proposed measures are contained in the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009.
The primary objective of the proposed new framework, which will be included in Sch 1 to the Taxation Administration Act 1953, is to protect the confidentiality of taxpayer information. Some new disclosures of information are also being introduced in instances where privacy concerns are outweighed by the public benefit of those disclosures. In determining this balance, a range of factors may need to be considered. These include:
• the purpose for which the information is to be used
• the potential impact on the individual from the disclosure and subsequent use of the information
• the nature and amount of information likely to be provided under any new provision
• whether the information can be obtained from other sources
• whether the new disclosure would represent a significant departure from existing disclosure provisions, and
• whether not providing the information would significantly undermine the ability of government to effectively deliver services or enforce laws.
While there are 20 different taxation laws that contain secrecy and disclosure provisions, only 18 have been amended. This is because the proposed framework does not include the A New Tax System (Australian Business Number) Act 1999 and the Tax Agent Services Act 2009. The taxation Acts being amended include:
• Income Tax Assessment Act 1936
• Income Tax Assessment Act 1997
• Fringe Benefits Tax Assessment Act 1986
• International Tax Agreements Act 1953
• Superannuation Guarantee (Administration) Act 1992
• Superannuation Industry (Supervision) Act 1993.
There are a number of non-taxation Acts that effectively override the secrecy and disclosure provisions contained in the proposed framework. These permit other Commonwealth entities such as the Auditor-General or the Inspector-General of Taxation to obtain taxpayer information, or access such information, in certain clearly defined circumstances. Examples include:
• s 32 and 33 of the Auditor-General Act 1997
• s 15 of the Inspector-General of Taxation Act 2003
• s 9 of the Ombudsman Act 1976
• s 44 of the Privacy Act 1988
• Sch 6 to the Anti-Terrorism Act (No 2) 2005, and
• the power of parliament to compel the production of information under the Parliamentary Privileges Act 1987 (though note that the new framework does limit the application of parliamentary privilege).
With one exception, the amendments are proposed to apply to disclosures of protected information made on or after the day after Royal Assent. The amendment facilitating disclosures of protected information for purposes relating to unexplained wealth orders will commence the later of the day on which the Bill receives Royal Assent or the commencement of Pt 1 of Sch 1 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2009.
The progress of various tax and tax related Bills is detailed below.
The Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 received assent as Act No 114 of 2009 on 16 November 2009.
The Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 had been passed by parliament with one amendment made by the House of Representatives. The amendment ensures that the Tax Practitioners Board is able to register all entities for a period of at least 12 months if they have transitioned into the new regime as registered BAS agents and they seek a further period of registration without having the necessary qualifications or experience. This amendment also ensures that BAS agents who transition into the new regime do not gain an unintended advantage by allowing their registration to lapse before they reapply for registration and obtain a minimum three years of registration.
The Tax Laws Amendment (2009 Budget Measures No 2) Bill 2009 and the Income Tax (TFN Withholding Tax (ESS)) Bill 2009 have been passed by the House of Representatives without amendment. The Bills contain proposed measures to amend the taxation of employee share schemes, the non-commercial losses rules, and the treatment of lost superannuation.
The Bills had been referred to the Senate Economics Legislation Committee, which recommended that they be passed. The Committee’s report is available at www.aph.gov.au.
The Carbon Pollution Reduction Scheme package of legislation has been by the House of Representatives without amendment and has now moved to the Senate.
The package was reintroduced into parliament following the Senate’s refusal to pass the previous legislation in August 2009 (see CCH Tax Week ¶808 (2009)). The reintroduced package of legislation is listed below:
• Carbon Pollution Reduction Scheme Bill 2009 (No 2)
• Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2009 (No 2)
• Carbon Pollution Reduction Scheme Amendment (Household Assistance) Bill 2009 (No 2)
• Carbon Pollution Reduction Scheme (CPRS Fuel Credits) (Consequential Amendments) Bill 2009 (No 2)
• Carbon Pollution Reduction Scheme (CPRS Fuel Credits) Bill 2009 (No 2)
• Carbon Pollution Reduction Scheme (Charges — General) Bill 2009 (No 2)
• Carbon Pollution Reduction Scheme (Charges — Excise) Bill 2009 (No 2)
• Carbon Pollution Reduction Scheme (Charges — Customs) Bill 2009 (No 2)
• Australian Climate Change Regulatory Authority Bill 2009 (No 2)
• Customs Tariff Amendment (Carbon Pollution Reduction Scheme) Bill 2009 (No 2)
• Excise Tariff Amendment (Carbon Pollution Reduction Scheme) Bill 2009 (No 2).
The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 has been passed by the House of Representatives with 64 amendments. Among other things, the Bill provides for disclosure of certain information to be made to the Tax Office under certain circumstances pursuant to new s 266A of the Proceeds of Crime Act 2002 (see CCH Tax Week ¶675 (2009)).
The changes made by the House to the Bill include the following amendments to s 266A:
• limiting the purpose for which information may be disclosed to law enforcement and prosecuting agencies to the investigation, prosecution or prevention of an indictable offence punishable by imprisonment for three years or more
• limiting the disclosure of information to foreign law enforcement agencies to conduct, that, if it had occurred in Australia, would constitute an indictable offence punishable by imprisonment for three years or more
• ensuring that a direct use immunity continues to apply to certain types of information disclosed under s 266A
• ensuring the immunities that apply to a particular answer or document when it is first obtained under the Proceeds of Crime Act continue to apply when the answer or document is disclosed under proposed s 266A
• providing that s 266A does not affect the admissibility of any information, document or thing obtained as an indirect consequence of a disclosure under the section.
The Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009 has also been passed by the House of Representatives without amendment. The Bill contains proposed measures to implement legislative aspects to organised crime that were not implemented by the first Bill (Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009). It includes additional measures to strengthen existing laws to more effectively prevent, investigate and prosecute organised crime activity, and target the proceeds of organised criminal groups.
In particular, the Bill proposes to:
• expand the list of officers who may give notices to financial institutions under s 213 of the Proceeds of Crime Act 2002 requiring them to provide information about accounts held by them to authorised officers. The expanded list names the Commissioner of Taxation, the Chief Executive Officer of Customs and the Chairperson of the Australian Securities and Investments Commission as officers who may give a notice to a financial institution
• amend the definition of “serious offence” in s 338 of the Proceeds of Crime Act 2002 by expanding it to cover two or more related fraud offences which, in aggregate, cause a benefit or loss of more than $10,000. A pattern of conduct involving systemic fraud is particularly problematic in areas such as social security, taxation and customs, where each individual fraud may involve less than $10,000, but the total pattern of fraud can involve much larger amounts
• enable things that have been seized, or documents that have been produced, to be used by, or shared with, Commonwealth officers is also appropriate. For example, it may be necessary to share a seized thing with a tax auditor for revenue enforcement purposes
• include the Commissioner of Taxation as a member of the Australian Crime Commission (ACC) Board. Adding the Commissioner of Taxation as a Board member will further enhance the ACC Board’s expertise and, in light of significant taxation related activity identified in ACC investigations and intelligence operations, increase the ACC’s capability to counter the impact of serious and organised crime
• repeal s 8J(6) of the Taxation Administration Act 1953 and substitute a new paragraph that refers to s 11.1 of the Criminal Code. This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.
The Statute Stocktake (Regulatory and Other Laws) Bill 2009 received assent on 16 November 2009 as Act No 111 of 2009.
The Act amends or repeals almost 30 Acts to remove redundant provisions. In particular, the Act:
• repeals the definition of “New Tax System changes” in s 15L(3) of the A New Tax System (Goods and Services Tax Transition) Act 1999, previously a cross-reference to the definition in Pt VB of the Trade Practices Act 1974, and inserts that definition in full, following the repeal of Pt VB of the Trade Practices Act 1974
• repeals the GST price exploitation provisions in the Trade Practices Act 1974. These provisions were enacted to specifically prohibit price exploitation following the introduction of the GST, following concerns that price rises unrelated to the GST might be represented to be caused by the GST. These provisions applied during the New Tax System transition period which ended on 30 June 2002
• repeals the Income Tax (Franking Deficit) Act 1987. That Act imposes the franking deficit tax that was payable under s 160AQJ of ITAA 1936. Franking deficit tax ceased to be payable under s 160AQJ after June 2002, so that provision was repealed as an inoperative provision in 2006 by the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006.
Regulations have been made to prescribe the qualifications and relevant experience requirements for registration as a tax agent or BAS agent under the new regulatory regime for tax agent services.
The regulations prescribe the:
• requirements for registration as a tax agent and a Business Activity Statement (BAS) agent
• definitions of, and requirements for recognition as, recognised tax agent associations and recognised BAS agent associations
• fees for registration applications
• allowances and expenses payable to persons required to appear before the Tax Practitioners Board (Board) to give evidence or to provide certain documents, and
• obligations of the Commissioner to provide administrative support to the Board.
The regulations relating to the name, commencement and definitions used in the regulations and those relating to the Board commence on 14 November 2009.
The remainder of the regulations will commence at the same time as Pt 2 of the Tax Agent Services Act 2009 commences.
Source: Tax Agent Services Regulations 2009 (SLI 2009 No 314) registered on the Federal Register of Legislative Instruments as Legislative Instrument F2009L04020 on 13 November 2009.
The government has released a package of proposed reforms to address fraudulent phoenix activity for public consultation.
Fraudulent phoenix activity involves avoiding the payment of tax liabilities, wages, superannuation and leave entitlements and other responsibilities, such as supplier accounts, through the deliberate liquidation of a company. The business in question then continues, free of liabilities, in the form of another corporate entity, controlled by the same person or group of individuals.
The package of reforms includes:
• amending the director penalty regime to remove the ability of directors engaged in fraudulent phoenix activity to avoid personal liability for Pay As You Go (Withholding) (PAYG(W)) liabilities by placing the company into voluntary administration or liquidating the company
• expanding the director penalty regime to apply to superannuation guarantee liabilities and other taxation liabilities such as indirect tax liabilities and a company’s own income tax liability
• amending the promoter penalty regime to ensure that it is able to target those individuals promoting fraudulent phoenix activity
• expanding anti-avoidance provisions in the taxation law (either through an expansion of the existing general anti-avoidance rule or through the creation of a specific provision) to effectively negate any taxation benefit derived from fraudulent phoenix activity
• reinstating the “failure to remit” offence which would make it an offence for an entity not to remit the required PAYG(W) amounts
• denying directors of companies (and potentially close relatives) from being able to access PAYG(W) credits in relation to their own income where amounts withheld have not been remitted (to the Tax Office) by the company
• making it an offence for directors to claim credits in relation to their own income for PAYG(W) amounts that have not been remitted by the company of which they are a director
• providing the Commissioner with the discretion to require a company to provide an appropriate bond (supported by sufficient penalties) where it is reasonable to expect that the company would be unable to meet its tax obligations and/or engage in fraudulent phoenix activity
• giving a court or the Australian Securities and Investment Commission a discretion to disqualify a person from being a director if the relevant company has been wound up and the conduct of the person, as a director of that company, makes them unfit to be concerned in the management of a company
• making directors personally liable for the debts of a liquidated company in circumstances where a “new” company adopts the same or similar name as its previous incarnation
• adopting the doctrine of inadequate capitalisation which will allow the corporate veil to be lifted where a company sets up a subsidiary with insufficient capital to meet the debts that could reasonably be expected to arise.
The package of proposed reforms is available on the Treasury website at www.treasury.gov.au.
Interested parties can make submissions on the paper by Friday 15 January 2010 by email: firstname.lastname@example.org or by post: The General Manager, Business Tax Division, The Treasury, Langton Crescent, Parkes, ACT, 2600.
Source: Assistant Treasurer’s media release No 090, 13 November 2009.
The Inspector General of Taxation has announced that he will be conducting a review into aspects of the Tax Office’s large business audit and risk review policies, procedures and practices.
The aim of the review is to identify issues and make recommendations which, when addressed, should improve the use of Tax Office’s audits and risk review products and framework, including its exercise of its information-gathering powers, and minimise potential adverse impacts on large business. This will include the identification of practices that promote the early resolution of disputes and minimise the costs of compliance.
Under its terms of reference, the review will focus on:
• the Tax Office’s comprehensive and specific issue audits, client risk reviews and related processes and behaviours, including:– whether audits and risk reviews are finalised within the appropriate timeframes without increasing the level of disputation– the Tax Office’s exercise of its information gathering powers (both formally and informally) and whether these powers are being used appropriately and effectively– the Tax Office’s application and remission of penalties and interest
• the Tax Office’s audit and risk review product framework and related management, including:– whether they are meeting taxpayer expectations– whether the Tax Office’s application of the various risk products is promoting taxpayer certainty, collaboration and the timely resolution of issues and disputes, and– whether certain products (such as client risk reviews) are being employed in a manner that is consistent with the Tax Office’s design and taxpayer expectations and understanding
• large business’ expectations around how audits and risk reviews should be handled so as to promote their timely, efficient and fair resolution.
Interested parties are invited to make written submissions on the review by 31 December 2009 by email to: email@example.com, fax: 02 8239 2100, or by post to: Inspector General of Taxation, GPO Box 551, Sydney, NSW, 2001.
Source: “Review into the ATO’s large business audit and risk review policies, procedures and practices: Terms of reference & submission guidelines”, Inspector General’s website at 17 November 2009.
The Joint Standing Committee on Treaties has recommended that binding treaty action be taken in respect to double taxation agreements (DTAs) with New Zealand, Jersey and Belgium.
In its report on the review into treaties, the Committee expressed its support for the following taxation agreements:
• Convention between Australia and New Zealand for the avoidance of double taxation with respect to taxes on income and fringe benefits and the prevention of fiscal evasion
• Agreement between the Government of Australia and the Government of Jersey for the exchange of information with respect to taxes
• Agreement between the Government of Australia and the Government of Jersey for the allocation of taxing rights with respect to certain income of individuals and to establish a mutual agreement procedure in respect of transfer pricing adjustments
• Second Protocol amending the Agreement between the Kingdom of Belgium and Australia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income.
Source: “Report 107: Review into treaties tabled on 20 August (2) and 15 September 2009”, October 2009 tabled on 16 November 2009.
The Commissioner of Taxation, Michael D’Ascenzo, has presented a paper on the taxation of financial institutions and instruments to a global conference held in China recently.
The conference looked at the weaknesses and strengths of the existing international architecture of taxation in this area, questioned the extent to which tax policies may have contributed to the current financial crisis, and sought to develop forward looking solutions to identified problems.
The Commissioner’s paper discusses:
• what role is played by common and fundamental distortions in the tax treatment of debt versus equity?
• how, and to what extent, do these principles conflict with administrability?
• how can these principles be applied to determine the appropriate tax treatment of complex synthetic instruments and contemporary financial intermediaries and institutions?
• how can taxation play a positive role, or at least a neutral role, in the development of financial systems and markets in developing economies?
The conference was presented by the Government of the People’s Republic of China and the International Tax Dialogue in Beijing, China, on 26 to 28 October 2009.
Source: “Agenda item III: taxation of the financial sector — instruments and intermediaries”, International Tax Dialogue website (www.itdweb.org/financialconference).
General information on Project Wickenby, including details of its activities, investigations and revenue collected, is now available on the Tax Office website.
The Project Wickenby task force is led by the Tax Office, working in partnership with the following federal departments and agencies:
• Australian Transaction Reports and Analysis Centre
• Australian Securities and Investments Commission
• Australian Crime Commission
• Australian Federal Police
• Attorney-General’s Department
• Australian Government Solicitor
• Commonwealth Department of Public Prosecutions.
“Project Wickenby” differs from “Operation Wickenby” in that “Project Wickenby” refers to the broader cross-agency task force, while “Operation Wickenby” refers to the criminal investigations led by the Australian Crime Commission since 2004.
The Tax Office has also released the latest edition of “Targeting tax crime”.
The online magazine outlines what the Tax Office and its cross agency partners are doing to detect and combat international tax evasion, and the outcomes of their global activities.
Source: “Project Wickenby”, Tax Office website, 13 November 2009; “Targeting tax crime: a whole-of-government approach”, Issue two, November 2009.
The Tax Office has issued the following five ATO Interpretative Decisions (ATO IDs):
• ATO ID 2009/132: Administrative penalty: failure to withhold from royalty payments to a French resident
• ATO ID 2009/133: PAYG withholding: penalty for failure to withhold — objection rights
• ATO ID 2009/134: Capital works: your area — tax law partnership
• ATO ID 2009/135: Capital allowances: hold — tax law partnership
• ATO ID 2009/136: Convertible debentures and tainted share capital accounts.
The High Court, by majority, has ruled that a provision empowering the Supreme Court of NSW to make a restraining order preventing dealing with interests in property was constitutionally invalid.
In 2008 the New South Wales Crime Commission sought restraining orders under s 10 of the Criminal Assets Recovery Act 1990 (NSW) (the Act) in relation to various bank and share trading accounts over which two companies exercised effective control.
Section 10(2)(b) of the Act provides that the Commission may make an ex parte application to the Supreme Court for a restraining order preventing dealings with interests in property which is suspected to have been derived from serious crime related activity. An ex parte application is an application made without notice to the affected party and determined in the absence of that party.
The Supreme Court made the order sought. On appeal the Court of Appeal of the Supreme Court set aside the restraining order on the basis that there was no admissible evidence that provided reasonable grounds for the suspicion asserted. However, the Court of Appeal rejected an argument that s 10 was constitutionally invalid.
On further appeal, by majority the High Court determined that s 10 was invalid. The majority considered that s 10 did not require the Commission to make ex parte applications for restraining orders. However, if the Commission did make an ex parte application, then the Supreme Court was required to make the restraining order if it was satisfied that the authorised officer’s affidavit reasonably supported that officer’s suspicions about the derivation of the property the subject of the application. Once the order was made, it could only be discharged in two circumstances: if an application for assets forfeiture was no longer pending in the Supreme Court (however, the legislation imposed no limit on the time within which an assets forfeiture application had to be determined); or upon an application by the affected party under s 25 of the Act, which could only succeed if the affected party was able to prove it was more probable than not that the relevant property was not fraudulently or illegally acquired — a negative proposition of broad import. The majority concluded that in these circumstances s 10 was repugnant to the judicial process in a fundamental degree.
Court ref:  HCA 49, (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), 12 November 2009.
Source: High Court media release, 12 November 2009.
A taxpayer’s claim that documents prepared by its accountants were protected by legal professional privilege has been rejected by the Federal Court.
The taxpayer claimed legal professional privilege in respect of 66 documents produced under subpoena by its accountants. In making its claim the taxpayer argued that the principle in FC of T v Pratt Holdings Pty Ltd 2004 ATC 4526 applied. In Pratt’s case legal professional privilege was extended to a documentary communication which a principal had authorised a third party, who was not an employee or agent, to prepare for the dominant purpose of it being communicated to a legal adviser for the purpose of obtaining legal advice for the principal.
The Commissioner challenged the claims of privilege. During the course of the hearing the taxpayer abandoned its claim for privilege in respect of nine documents.
The court held that there was insufficient evidence to show that the documents prepared by the taxpayer’s accountants had been brought into existence for the dominant purpose of giving or obtaining legal advice at the time of their production. Much of the documentation appeared to have either had minimal involvement with solicitors or predated the appointment of solicitors. Accordingly, the taxpayer’s claim for privilege could not be maintained.
Court ref:  FCA 1293 (Edmonds J), 13 November 2009, Sydney.
The Tax Office has issued a decision impact statement on ConnectEast Management Limited v FC of T 2009 ATC ¶20-095.
In that case, the Full Federal Court found that an unlisted widely held subsidiary trust could not acquire the status of two listed widely held trusts which owned its units on the basis of their collective ownership as the trust loss measures in Sch 2F of ITAA 1936 were confined to ownership by a single trust.
The Tax Office said the decision confirms the Commissioner’s view that for the operation of s 272-127(1) to be engaged it must be the case that there is at least one trust of a higher level which, in its own right, holds directly or indirectly fixed entitlements to all of the income and capital of the subsidiary trust seeking reclassification (see ATO Interpretative Decision ID 2006/317).
The Tax Office has issued the following three class rulings:
• CR 2009/64: Income tax: employment termination payment: New South Wales Lotteries Corporation — applies from 18 November 2009 to 17 November 2010
• CR 2009/65: Income tax: CSIRO — National Indigenous Study Awards — applies from 1 July 2007
• CR 2009/66: Income tax: amendment of terms of Reset Exchangeable Securities and Preference Shares: Insurance Australia Group Limited — applies from 1 July 2009 to 30 June 2010.
The trustee of a self managed superannuation fund (SMSF) has been unable to satisfy the AAT that amounts treated by the Commissioner as taxable contributions were personal contributions made by the members of the fund.
The SMSF had two members, a husband and wife. The trustee objected to assessments for the years ended 30 June 2000 and 2001, claiming that certain amounts assessed to the fund as taxable contributions were personal contributions by the husband or wife. According to the husband, the only plausible explanation as to how the disputed amounts came into the fund was that either he or his wife paid them in as personal contributions.
The Commissioner submitted that there were other possible explanations and that the taxpayer had not displaced the logical assumption that the information originally provided to the Commissioner was correct, or at least, more reliable than explanations put forward by the husband so many years after the event. The Commissioner claimed that one possible explanation for the disputed amount in the 2000 income year was that it represented the untaxed element of the post-June 1983 component of an ETP which was rolled over to the fund and would have been assessable as a taxable contribution. In relation to the 2001 income year, the Commissioner submitted that the disputed amount could have been a contribution made under a salary sacrifice arrangement between the wife and her employer.
The AAT held that the taxpayer had not discharged the burden of proving that the assessments were excessive under s 14ZZK(b)(i) of the Taxation Administration Act 1953. While the possibility that the tax returns contained errors could not be excluded, there needed to be some reliable basis on which to make a finding that some figures were wrong and should be substituted by alternative figures. The husband’s submission that additional monies were contributed by him or his wife could not be supported by contemporaneous, independent documentation. His assertions were made not on the basis of a genuine recollection of facts, but on a belief of what must have happened. He had not been able to provide any reliable information or documentation to ground an argument that the belief was well-founded.
On the other hand, the Commissioner had provided well-reasoned (although hypothetical) alternative scenarios that were consistent with the information declared in the returns.
AAT ref:  AATA 881 (SE Frost, Senior Member), 16 November 2009, Sydney.
See the CCH Australian Federal Tax Reporter at ¶790-990 and following, ¶973-140 and following.
The Cooper review into governance and efficiency, the Henry tax review, and the Ripoll parliamentary inquiry should be viewed as an opportunity for bringing greater certainty to superannuation policy, rather than as potentially stifling progress, according to the Minister for Superannuation, Chris Bowen.
Mr Bowen said the purpose of these reviews is for the government to achieve well-understood policy settings where their rationale is well-established and where the need for annual changes to tax and other settings is reduced or eliminated.
The government response to these reviews will be guided by four key policy ambitions, against which recommendations will be assessed. These four principles are: simplicity, efficiency, equity, and adequacy.
Mr Bowen pointed out that a simpler system would create a greater potential for more voluntary contributions and encourage Australians to become more engaged in thinking about their retirement income circumstances.
A more efficient system would not only be easier for employers to use, but would also involve lower operating costs and therefore lower fees to members.
Tax concessions for low and middle income earners to save through super are significantly less than the concessions available to high income earners. Mr Bowen recognised the need for equity and the design of a system that has genuine incentives built in, to make superannuation attractive to low and middle income earners.
Source: Address by Minister for Superannuation Chris Bowen to ASFA 2009 Conference, “Closing address: the new age of super”, Melbourne, 13 November 2009.
Scale, a focus on maximising long-term net investment returns, and alignment with member interests, are the three key ingredients for success in superannuation, according to the Chairman of the SuperSystem Review, Jeremy Cooper.
The presence of all three is much more likely to see better outcomes for members. The absence of one or more of them is likely to mean lower retirement savings for members or to make the fund more exposed to fundamental governance issues.
In addressing whether the current superannuation mindset would position Australia adequately for a future, Mr Cooper noted that everyone had a vested interest in the status quo, except perhaps the members.
Mr Cooper also observed that:
• most trustees still outsource investment management
• the industry overall confuses the consumption of investment products and investing
• everyone pays on a before-tax basis whereas members only get the after-tax returns
• an industry that outsources to such a large extent seems to be purpose built for ambiguity and lack of accountability. This favours the interests of everyone but the members
• trustees agree to before-tax performance fees that are skewed to encourage short-term behaviour
• nearly everyone pays percentage of asset-style fees; fees that turn largely fixed costs into ones that grow with assets under management
• trustees are far too concerned with peer group risk.
Mr Cooper said that superannuation funds must start using their power more overtly in the best financial interests of members. This included getting much more active in the governance of underlying investments. He highlighted the significance of the cumulative effect of the advantages that large funds have over small funds. These include lower investment fees, in-house investment expertise, private placement capabilities, ability to spread investment risk through diversification, reduced administrative unit costs, and enhanced availability of education, information and service.
Source: Address by Jeremy Cooper, Chair Super System Review, ASFA 2009 Conference: “Super in the New Age” Scale, focus and alignment, 12 November 2009.
The Federal Court has held that a taxpayer which bought second-hand motor vehicles from unregistered vendors and subsequently sold them after leasing them was entitled to input tax credits for the acquisition of the vehicles.
The taxpayer carried on a business of motor vehicle fleet leasing and management. In the ordinary course of that business the taxpayer purchased, leased, managed and sold second-hand motor vehicles. Private individual employees would sell their vehicles to the taxpayer. As none of the employees were registered, or were required to be registered, for GST purposes, the sale by each employee to the taxpayer was not a “taxable supply”, and no GST was payable in respect of the supply.
The taxpayer sold the vehicles in the period from 1 July 2000 to 31 October 2006. Each sale constituted a “taxable supply” of the vehicle, and GST was payable by the purchasers of the vehicles. The taxpayer claimed an input tax credit in respect of each acquisition pursuant to s 66-5(1) of the GST Act.
The Commissioner claimed that the taxpayer was not entitled to input tax credits for the acquisition of the vehicles because the vehicles were not acquired for the purpose of sale as required by s 66-5(1).
The court held that the taxpayer acquired the vehicles for the purpose of sale in the ordinary course of business. The taxpayer’s business purpose in acquiring the vehicles was to lease them and sell them at the end of the leases. A sale was necessary to provide the forecasted financial returns to the taxpayer’s business.
The court accepted that the whole transaction was a composite operation, where the disposal of the vehicles for forecasted valuable consideration was integral to the taxpayer’s business. It concluded that concurrent purposes of lease and of sale existed in the lease arrangements at the time of the acquisition of the goods.
Court ref:  FCA 1309 (Middleton J), 13 November 2009, Melbourne.
Measures proposing a single licensing and reporting regime for trustee companies to be administered by the Australian Securities and Investments Commission have been introduced into the NSW Parliament.
The introduction of the proposed legislation follows the Council of Australian Governments’ agreement in 2008 that the Commonwealth would assume responsibility for the regulation of trustee companies.
The Trustee Companies Amendment Bill 2009 (NSW) proposes to remove the state approval mechanism for trustee companies and to define trustee companies as licensed trustee companies under the Corporations Act. Trustee companies will be required to have a trustee company Australian financial services licence.
The proposed measures will eliminate the unnecessary regulatory burden on trustee companies arising from duplicate licensing and reporting requirements in each state and territory. They will also apply the consumer protection regime for financial services from the Corporations Act to trustee companies, which will have to comply with the conduct, disclosure, advice, dispute resolution and compensation requirements of that Act.
The Bill will commence on a day or days to be appointed by proclamation.
The Queensland Government has announced that it will provide relief from duties paid to facilitate the restructure of stapled entities. Exemptions will be available for so-called “top-hatting” restructures of land rich corporations, listed public unit trusts and widely held public unit trusts.
Top-hatting refers to the interposition of a head trust between stapled entities and their existing security holders. Conditions will apply including that the restructure qualifies for CGT roll-over relief under the Commonwealth’s CGT provisions for top-hatting restructures.
Duty relief will apply to qualifying restructures occurring after the amending legislation is enacted, which is expected to be early next year.
Source: Queensland Treasurer’s media release, 18 November 2009.
Measures proposing a five-year time limit for applications to the Commissioner for a refund of tax paid have been introduced into the ACT Parliament.
The Revenue Legislation Amendment Bill 2009 (ACT) proposes to amend the Taxation Administration Act 1999 (ACT) to introduce a five-year time limit in which a taxpayer may apply to the Commissioner for a refund of tax paid. An exception will apply where another Act that is a tax law has its own specific provision in relation to refunds of tax.
The Bill also proposes to amend the First Home Owner Grant Act 2000 (ACT) to:
• clarify that a “reviewable decision” is a decision of the Commissioner under another provision in the Act
• extend the timeframe in which certain First Home Owner Grant applicants have to apply to the Commissioner for a shorter period or exemption from the residency requirement, and
• insert an automatic exemption for non-complying applicants (where a grant application is made by joint applicants, and at least one complies) from the residency requirement.
The proposed amendments will be effective from the day after notification.
The Payroll Tax Amendment Bill 2009 (ACT) has been passed by the ACT Legislative Assembly and is now awaiting notification.
The Bill contains proposed measures to clarify in which jurisdiction payroll tax is payable where an employee works in more than one jurisdiction in a month. The reform is part of the agreement reached on 26 June 2009 by all states and territories to implement new uniform payroll tax rules.
The Duties Amendment Bill 2009 (No 2) (ACT) has been passed by the ACT Legislative Assembly and is now awaiting notification. The Bill proposes to amend the Duties Act 1999 (ACT) by:
• allowing for the cancellation of a transfer of dutiable property in the provision dealing with the rescission of agreements
• amending the terminology in the provision relating to the registration of a motor vehicle
• ensuring that vehicles that currently pay duty at the lower rate continue to do so, including plant and equipment vehicles and vehicles with a gross vehicle mass of more than 4.5 tonnes
• removing provisions dealing with the duty liability of territory entities as these provisions are now under the Taxation (Government Business Enterprises) Act 2003
• inserting new definitions of “de facto relationship” and “spouse party” and new provisions relating to financial agreements for de facto relationships (see CCH Tax Week ¶1029 (2009)).
The ACT Revenue Office has advised that it will refund duty paid on certain general insurance policies. The special duty refund arrangement applies only where:
• the policy was provided by persons who were not registered or authorised insurers under the Duties Act 1999 (ACT), and
• the duty was paid during 1 March 1999 to 17 May 2006 as part of a general insurance premium.
Taxpayers can use the “Special application refund form” to make an application for a refund of insurance duty, available on the ACT Revenue Office at www.revenue.act.gov.au/duties/insurance.
Source: “Refund of duty paid on certain general insurance policies”, ACT Revenue Office website, 12 November 2009.
The due dates for payment of tax, filing returns and satisfying various other obligations in December 2009 are noted. Where the due date falls on a Saturday, Sunday or public holiday, it may be done on the next business day.
Due date for payment for large/medium companies and superannuation funds that are required to lodge by 15 January 2010.
Due date for lodgment of activity statements for reporting and payment of:
• GST, wine equalisation tax and luxury car tax by monthly GST reporters, and
• PAYG amounts withheld from payments during November 2009 by medium PAYG withholders.
CCH Tax Week contributors: C Chan BCom LLB; S Moore BEc LLB (Hons) MTax; B Page BA LLM; VT Tran BCom CA.
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