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Tax Newsletter April 2013
March 20, 2013 | 
Author No more CGT discount for non-residents
The Government has issued for comment draft legislation proposing to implement its 2012 Budget announcement that it will remove the capital gains tax (CGT) discount for non-resident individuals on taxable Australian property, such as residential and commercial real estate and mining assets.
Under the current law, individual taxpayers are generally entitled to a 50% discount on capital gains made from assets they have held for at least 12 months, regardless of the individual’s residency status. The proposed changes will introduce new residency requirements.
Under the changes, non-residents will still be entitled to a discount on capital gains that accrued prior to 9 May 2012 (ie, the day after the Government’s announcement), provided they obtain a market valuation of the asset as at 8 May 2012.
Note that, if implemented, the changes will apply to affected individuals irrespective of whether the gain resulted from an asset owned by the individual or was a gain from an asset held by a trust and attributed to the individual.
In summary, the effect of the measure will be to:
- retain the full CGT discount for discount capital gains of foreign resident individuals to the extent that the increase in value of the CGT asset occurred prior to 9 May 2012;
- remove the CGT discount for discount capital gains of foreign and temporary resident individuals that accrued after 8 May 2012; and
- apportion the CGT discount for discount capital gains where an individual has been an Australian resident and a foreign or temporary resident during the period after 8 May 2012. The discount percentage will be apportioned to ensure the full 50% discount is applied to periods where the individual was an Australian resident.
Tax certainty for beneficiaries of superannuation death benefits
The Government has released draft regulations that propose to give effect to an earlier announcement made in October 2012 that it will provide certainty to the beneficiaries of superannuation death benefits. The changes will allow the tax exemption for earnings on assets supporting superannuation income streams to continue following the death of a fund member who was in the pension phase until the deceased member’s benefits have been paid out of the fund. If implemented, the changes will apply from 1 July 2012.
The proposed changes appear to be a response to industry concern with the Tax Commissioner’s draft ruling on superannuation income streams issued in a 2011. In that draft ruling, the Commissioner took the position that a superannuation income stream ceases as soon as the member in receipt of the income stream dies, unless a dependent beneficiary of the deceased is automatically entitled to receive an income stream.
According to the Commissioner’s preliminary view, tax would generally apply to a fund’s investment earnings, including realised capital gains, following the death of a pension member. However, the proposed new regulations will ensure that this is not the case.
Disposal date critical for CGT small business concessions
In a recent decision, the Administrative Appeals Tribunal (AAT) decided that a taxpayer’s interest in a business was disposed of when a “heads of agreement was executed”, and not when the formal contract of sale was executed.
An agent had testified that it was long-standing practice in the industry for an intending purchaser and vendor to enter into an “in-confidence” period of exclusivity during which the intending purchaser would use professional advisers to carry out due diligence.
Despite evidence suggesting that the industry did not regard the heads of agreement as a binding contract, the AAT was of the view that the parties to the heads of agreement had agreed to the sale and purchase of the business in question. As a result, as it was found that it was the date of the heads of agreement that was the applicable date of the transaction for CGT purposes.
As a result, the taxpayer was not entitled to access the CGT small business concessions because he did not satisfy the relevant test for the concessions just before that date.
Car expenses – Rates per kilometre for 2012–2013
The Government has announced the “cents per kilometre” rates for calculating tax deductions for car expenses for the 2012–2013 income year. Note that they are unchanged from 2011–2012 and are as follows:
- Small car (non-rotary engine up to 1600cc, or rotary engine up to 800cc): 63c/km.
- Medium car (non-rotary engine 1601–2600cc, or rotary engine 801–1300cc): 74c/km.
- Large car (non-rotary engine 2601cc and above, or rotary engine 1300cc and above): 75c/km.
LAFHA reasonable amounts for food and drink 2013
With the changes to the living-away-from-home rules (effective from 1 October 2012) affecting employees who are required by their employers to live away from home for work, greater care needs to be taken in assessing the fringe benefits tax (FBT) implications of living-away-from-home allowances (LAFHAs). With a narrower scope for eligibility for concessional treatment and increased substantiation requirements, the level of risk is greater.
The Commissioner has recently determined the amounts that he considers reasonable for food and drink expenses incurred by employees receiving a LAFHA fringe benefit for the FBT year commencing on 1 April 2013. Broadly, if an employee’s food or drink expenses exceed the amount the Commissioner considers reasonable, the employee will have to substantiate all the expenses incurred, or the employer will be liable to FBT on the amount of LAFHA paid to the employee that is in excess of the reasonable amount.
TIP: The new rules will require careful consideration when planning for and preparing the 2013 FBT return – this may include identifying whether the transitional rules apply, obtaining evidence if substantiation is required, and checking contracts to see if food and drink is clearly identified. Where food and drink is greater than the ATO reasonable amounts, future restructuring should be contemplated. Please contact our office for further information.
Tax anti-avoidance law to be amended
In response to a number of high profile cases lost by the Tax Commissioner, the Government has introduced legislation into Parliament that proposes to ensure the effective operation of the income tax general anti-avoidance law. In those cases, the taxpayers successfully argued that the income tax general anti-avoidance law did not apply as tax was a legitimate consideration in commercial decision-making, and where the tax cost of a transaction was considerable the taxpayer would have done nothing. The changes, once enacted, will apply retrospectively from 16 November 2012.
The changes aim, among other things, to rectify what the Government considers to be perceived weaknesses in the “tax benefit” concept, which have reduced the effectiveness of the law in countering tax avoidance arrangements. Broadly, the amended law will continue to apply where a taxpayer enters into a scheme with a sole or dominant purpose of obtaining a tax benefit. However, in considering alternative postulates (ie what the taxpayers might otherwise have done), tax costs will be disregarded under the amended law.
Consequently, it will be necessary to compare the scheme entered into with other ways of achieving the same commercial outcome, regardless of the tax cost. Eliminating the defence that the taxpayer would otherwise have done nothing will broaden the potential application of the rules significantly.
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Finance Newsletter – March 2013
Mercia’s Mortgage Brokers
With house prices moving it’s even tougher for first home buyers to enter the market. If you want to assist a family member to buy their first home there are a number of thing you can do:
- Provide a gift or loan
- Offer equity in your own home as security
- Use Commonwealth Bank or other banks Family Equity products.
Family Equity is a home buying solution unlike any other, designed to help first home buyers enter the property market. It’s a range of financing options that can help customers secure a home loan, repay a home loan, or a combination of both. The main customer benefit is the ability to enter the property market by relying on guarantors for security and/or servicing support.
A family member has always been able to assist with providing equity or funds for a deposit. What’s good about family equity is it also allows servicing support. This means that if an applicant’s income is not sufficient to service the loan required, a family member (or anyone for that matter) can assist by paying some of the repayments on an ongoing basis. The person providing the equity or servicing support is not required to be on the title of the property being financed. Remember there is a grant and stamp duty incentives from the State Government for first home buyers too.
If you have any questions about Family Equity, Reverse Mortgages or any other type of loan, call Dan Goodridge on 04144 233 40. Our service is free of charge to you the borrower and we have access to all the major lenders in WA.
If you would like to speak to a broker, call Dan Goodridge on 0414 423 340 or e-mail dg@iinet.net.au .
Property Newsletter – March 2013
8 Tips for Picking a Winner in a Rising Market
The prospect of capital growth in the Perth property market certainly looks very good at the moment, which is why many investors are eagerly entering the market. But with the lure of potential gains, there is an added risk of complacency.
Investors need to be vigilant with their investment decisions, particularly when it comes to choosing where in Perth to invest, as some areas will inevitably perform better than others.
Pick the right areas and you could accelerate your path to financial freedom; make the wrong decisions however and you may find the market runs away from you. So, how do you pick the areas that will lead the way in a rising market? Here are 8 valuable tips:
#1 – Ask this powerful question
While property investing may at times seem complicated, asking yourself this one simple question will go a long way to helping you pick a winner. When evaluating an area, ask yourself what will cause demand for this area to increase relative to supply. If there is a clear answer, you are on your way to uncovering a potential hotspot.
#2 – Look for signs of gentrification
Look for areas with signs of positive change, such as people spending money on renovating and extending their homes, or the emergence of fashionable new shops. These can indicate that the demographics of an area are changing, which could signal imminent growth.
#3 – Avoid the population growth trap
While Perth’s strong population growth is one of the main drivers for the rising real estate market, don’t fall into the trap of thinking areas with high population growth automatically make good investments. In reality, most areas with high population growth are on the edges of the metropolitan area and have an abundance of free land, which will constrain capital appreciation.
#4 – Infrastructure equals growth
Infrastructure is always a major driver for price growth because it increases the attractiveness and amenities of particular areas. The benefits of infrastructure, however, are generally only recognised after the new infrastructure is in place, which means buying before this happens can generate excellent returns.
#5 – The location
Location should always be an important factor when choosing where to invest, and it’s wise to look for areas with more than one location advantage. Consider the area’s proximity to the city, major employment areas, the water, and key amenities. Is the area within a sought-after school zone? Is it adjacent to a prime suburb and likely to benefit from the ripple effect? Does the area have good transport options?
#6 – The land
It’s important to choose a property with a high proportion of value in the land, which is the part of the property that will appreciate. Properties with the majority of their value tied up in the building are destined to underperform as the building depreciates.
#7 – Follow the money
One way to locate an emerging hotspot is to follow Government spending. When Governments are spending money beautifying main streets and installing new infrastructure it can give an area that additional boost. Similarly, spending by the private sector on things like shopping centre extensions can also cause demand for an area to increase.
#8 – Zoning changes
Finding areas that are being rezoned can prove extremely profitable for investors. When areas are zoned for higher density it creates opportunities to develop property and subsequently increases the value of the land.
Conclusion
Buying an investment property is a big step and not one to be taken lightly. As the market heats up in 2013, it’s important that you avoid the trap of thinking that “any property will do”. By understanding the various factors that drive property values, and getting professional advice, you can make the most of the rising market and set yourself up for the future.
Rental Returns on the Increase
Low interest rates, strong demand by tenants and higher rents mean that rental yields are now more attractive to investors. The median rent for houses has risen by $10 to $470 per week in the 3 months to January, according to the latest rental data from the Real Estate Institute of Western Australia. Median rents for units, apartments, villas and townhouses however were unchanged at $420 per week, meaning Perth’s overall median rent remains stable at $450 per week. The data also shows that there was a 13 per cent climb in the number of new leases from the December quarter, though the vacancy rate remains stable at around 1.9 per cent. REIWA President David Airey says the large number of people leaving the rental system to buy their first home might be a contributing factor. “It may also be due to the return of some investors who are adding stock to the rental supply,” Mr Airey said. Mr Airey said that low interest rates and the strong demand by tenants meant that rental yields were now more attractive to investors who had been absent from the market in recent years.
Working with a Buyers Agent – Part 1
Here’s a step by step look at what’s involved when you employ the services of a professional buyer’s agent for the purchase of an investment property.
Most people would be familiar with the fundamental role of a buyer’s agent – to help a buyer find, research and acquire a property – but few know the specific steps involved in the process.
In this series, you’ll get a step by step look at what’s involved when you employ the services of a professional buyer’s agent for the purchase of an investment property.
Once you have appointed a buyer’s agent to work on your behalf, there is an important first step which involves discussing and establishing your requirements. This must happen before any property research is undertaken.
For a buyer’s agent to find you the right property, he or she needs to fully understand a number of important things including your current financial position, preferences and plans for the future.
A good buyer’s agent will ask the right questions to help flesh out the main reasons for investing and what you are looking to achieve with the purchase. This is important as any purchase must fit into your long term plan.
Also, he or she will require information regarding your financial situation, other properties or major assets you currently own, how much you are willing to invest and what types of properties you are looking to purchase.
You may have a clear idea of what type of property you want, or preferred locations, however many investors leave this to the suggestions of the buyer’s agent.
The decision of which type of property to search for is influenced by a number of factors, including your budget, goals, risk tolerance and the degree of involvement you want with the property. For instance, some types of property have better prospects for growth but they may also have higher holding costs. Similarly, some properties may offer the potential to add value quickly through renovations and development, while others are more set and forget.
At this initial stage of information gathering, the buyer’s agent may bring in the expertise of a finance broker who will discuss your preferences for finance and offer advice on which structure will suit your plans moving forward.
The success of an investment purchase is not just in the research but also the planning, which is why this first stage is so critical. Only with this direction and foundation can you realistically expect to meet your investment goals within the time-frame you desire.
In the next article we will look at what happens during the property search.
Please Mum and Dad, Can I Borrow Some Equity
There is a loan feature that allows a buyer’s family member to guarantee a portion of the loan, reducing the deposit needed or even eliminating the need for a deposit entirely.
For first time home buyers and investors, one of the biggest obstacles to buying a property is saving for a deposit.
There is however a way for buyers to get into their first property without a deposit by using what is called a family equity loan. In fact, it’s not technically a type of loan but rather a feature that can be added to most regular home loans.
This feature allows the buyer’s family member to guarantee a portion of the loan using existing property as security, reducing the deposit needed or even eliminating the need for a deposit entirely. The guarantor can be a parent, parent-in-law, step-parent or in some case even a grandparent or sibling.
The guarantor can determine what portion of the loan he or she will secure, but it’s normally in the realm of 20 per cent. The guarantor doesn’t need to actually provide the buyer with any cash or make any repayments on the loan.
It’s easy to see how this loan feature can help someone buy a home or invest in residential property sooner, because the buyer can effectively borrow the entire purchase price and costs. Plus, with the added security being provided, the lender may not require Lenders Mortgage Insurance (LMI), which can be costly for a borrower.
Some borrowers have used this feature not just to make a purchase but also to maximise the amount they can borrow and purchase a more expensive property.
Despite the lender having the extra security, the borrower will still need to meet the lender’s borrowing criteria, which may include having stable employment, a clear credit history, and an ability to service the debt.
In rare cases where the borrower defaults on the loan and the newly purchased property gets repossessed, there is a risk to the guarantor. If the sale of the property doesn’t generate enough money to repay the loan, the lender could demand the guarantor pay the shortfall up to the amount that was guaranteed. The good news is that once the borrower has built up enough equity in the property, the guarantor can be removed from the loan.
Garden Maintenance can be a Thorny Issue
Garden maintenance can often lead to issues between a landlord and tenant. So, what exactly is a tenant’s responsibility when it comes to maintaining the garden, and what is the landlord’s responsibility?
Living in a property with a beautiful garden can be a treat, especially in the spring and summer months when the weather is great and we are entertaining outdoors.
The problem with gardens is that they require maintenance. And although some people are happy to spend weekends exercising their green thumbs, for most people garden maintenance is a chore, which is why gardens are so often neglected.
Inevitably, garden maintenance, or the lack thereof, can often lead to issues between a landlord and tenant. So, what exactly is a tenant’s responsibility when it comes to maintaining the garden, and what is the landlord’s responsibility?
Unless the tenancy agreement says otherwise, the tenant is generally responsible for mowing and edging lawns, watering, weeding, pruning, and fertilising. These responsibilities could easily be termed ‘general maintenance’. Ultimately, the tenant is responsible for ensuring the garden is maintained to a standard set at the beginning of the tenancy.
Generally, the landlord is responsible for things such as providing hoses and sprinklers, maintaining the reticulation system, cleaning gutters and tree lopping. However, in some tenancy agreements it is the tenant’s responsibility to replace broken sprinkler heads.
It’s easy to see how uncertainty and issues may arise. For instance, at what point does a tree or shrub require lopping instead of pruning? And although the landlord is generally responsible for keeping gutters clean, it is the tenant’s responsibility to advise the property manager of any potential blockages or water leaks. If an issue is fairly obvious and the tenant fails to report it, the tenant may be liable for any damage caused.
A good property manager will make sure all parties clearly understand their responsibilities, and with the help of a comprehensive Property Condition Report and regular inspections, ensure these responsibilities are met.
Protecting Yourself When Acquiring Your Development Opportunity
You’ve done your research and now you are ready to put an offer in for your development property. It sounds straight forward, but there are some potential traps that you need to avoid.
Although you may have conducted substantial research prior to placing your offer, it’s unlikely that you would have had the time or the opportunity to cover all your bases. With that in mind, it’s an absolute necessity to have a ‘due diligence’ clause in your contract of purchase. This gives you the ability to walk away if you are not satisfied for any reason with the outcome. Despite what some people may believe, a finance clause is not adequate!
You must also remember that sales agents work for the seller, and for that reason their contracts are skewed to suit the seller’s needs and not necessarily yours. A properly written due diligence clause is essential; a poorly written one could cost you tens or even hundreds of thousands of dollars. Using a buyer’s agent is a good way to manage this process as they should have the appropriate clauses to insert into the contract and can also protect your identity and motives for purchasing to give you leverage.
Where possible you should aim to negotiate a reasonable period for due diligence, enough for you to undertake all the extra checks you need to. And also, a longer settlement is also advisable.
Once your offer and all terms and conditions have been accepted, then it’s time for you to get started on your post-acquisition feasibility study. Start by refining your numbers (particularly in light of any new information you acquire), and begin conducting your due diligence. This is your opportunity to look at the property in more depth, find out if there are any nasty surprises, and walk away from the deal if you’re no longer comfortable.
Your due diligence can encompass a number of things. Start by talking more freely with sales agents about realistic sale prices and get the builders on site to ensure your costing estimates are valid. Consider undertaking a soil analysis to ascertain what sort of foundations might be required (amongst other things), investigate the services available and where they are located (such as sewerage lines), and check the title for any restrictive covenants or easements. Talk with surrounding property owners about the site and your plans – this will give you an indication if you’re in for a battle! And don’t forget to liaise with the local council about your plans and their requirements to make sure your proposed development has a strong chance of approval.
There is lots of work to be done once you decide you’re ready to place an offer, it’s definitely not the time to rest on your laurels. But know that if you go into it with your eyes open, you can rest assured that you’ve done all you can to protect yourself and make your development a success
Tax Newsletter – March 2013
No splitting of rental income for couple
The Administrative Appeals Tribunal (AAT) has refused a husband’s argument that he could split his rental income with his (now estranged) wife even though the commercial property was registered under his name only.
The taxpayer had lodged tax returns on the basis that the property was shared equally between him and his wife. However, the Commissioner formed the view that as the property was in the husband’s name only, the rental income from that property belonged to him alone.
The husband claimed that the property was an asset of a “tax law partnership” between him and his wife. He also argued that the property was a “joint marital asset” held by them on a 50/50 basis, that the property was purchased from joint marital funds, and that both he and his wife each applied the income from the property for their own use.
However, the AAT was not satisfied with the evidence presented before it. It noted the absence of the wife from giving evidence, as well as a lack of written documentation, to prove there was a partnership. The AAT found that there was no evidence to show that the property was “jointly owned” or that the couple was in receipt of income jointly.
Winery losses cannot offset other income
A taxpayer has been unsuccessful before the AAT in seeking a discretion under the tax law to allow her to offset losses from a winery business against her other income.
The taxpayer had sought for the discretion to cover the income years ending 30 June 2010 to 30 June 2018. She argued, among other things, that it was acceptable commercial practice in the winery business to stagger the plantation of vines over such a period.
However, the AAT sided with the Commissioner and held that the vines could be planted and become productive within five years. It therefore held that the taxpayer was unable to satisfy the relevant test for the discretion.
TIP: Under the tax law, an individual conducting a business (either alone or in a partnership) may offset losses from the business against income from other sources, such as wages, but only if certain tests are met.
If the individual does not meet any of the tests, the individual may seek the Tax Commissioner’s discretion to allow him or her to claim the loss. Note that there are exceptions for primary producers and artists under the rules. Please contact our office if you have any questions.
Property developers denied GST margin scheme
The AAT has affirmed GST assessments levied at two property developers associated with the sale of real property between 2008 and 2009. The taxpayers had purchased property, which was eventually subdivided and on-sold. The taxpayers said they “never had an intention of not including GST in returns or defrauding the Commissioner” and that “they wanted their returns to be correct”.
However, the AAT affirmed the Commissioner’s assessments. It also decided that the margin scheme could not apply in the circumstances as there was no agreement in writing between the vendor and purchaser that the margin scheme was to apply to the property transaction.
TIP: The use of the margin scheme can provide a lower GST cost to the supplier than would normally be the case under the general GST rules. However, in addition to meeting various eligibility requirements, there must be an agreement in writing between the supplier and recipient that the margin scheme is to apply. Please contact our office for further information.
Superannuation top-up brings on 93% tax
The AAT has affirmed an individual’s excess superannuation contributions tax liability. On 27 June 2008, the individual’s employer made a “top-up” superannuation contribution to a clearing account. However, the funds were not allocated to the individual’s superannuation account until 23 July 2008.
The AAT considered that the payment could not be said to have been “made” in the 2008 income year. This resulted in a $69,665 excess superannuation contributions tax liability for the individual, representing an effective tax rate of 93%!
The AAT also decided that there were no “special circumstances” in this case to warrant the Commissioner’s discretion under the tax law to reallocate the amount to the 2008 year. The AAT said that the imposition of a tax under the tax laws – even a large tax such as the effective 93% tax rate in this case – is not in itself “special circumstances”. There must be some “special circumstances” that exist beyond that in order to warrant the Commissioner’s discretion.
TIP: This case highlights the importance of managing the timing of all concessional contributions against an individual’s contribution caps for each financial year.
As if this was not challenging enough, the concessional contributions cap has been frozen at $25,000 for 2012–2013 and 2013–2014, regardless of age. This unfortunately sets a trap for the unwary that could generate unexpected tax liabilities if contributions intended for June in a particular financial year are not “received” by the fund until July in the following financial year.
GST and residential premises
The ATO has issued a suite of rulings on:
- how GST applies to supplies of residential premises;
- how GST applies to supplies of commercial residential premises and supplies of accommodation in commercial residential premises; and
- how GST applies to supplies of long-term accommodation in commercial residential premises.
In-house fringe benefits – rule changes on the way
The Government has recently said that the existing fringe benefits tax (FBT) concessions in the law were not intended to allow employees to purchase goods and services (usually sold by the employer to the public) from their pre-tax income through salary packaging arrangements. According to the Government, these employees are receiving tax-free, non-cash remuneration benefits for goods and services, while other employees who do not have access to such salary packaging arrangements must pay for the goods and services from their after-tax income.
The Government has introduced a Bill into Parliament in order to deal with this issue. It proposes to remove the concessional treatment for such “in-house fringe benefits” accessed by way of a salary packaging arrangement.
If implemented, the changes will apply to all salary-sacrifice arrangements entered into on or after 22 October 2012. For pre-existing arrangements, the new measures will not apply until 1 April 2014 – but the renewal of, or changes to, an arrangement will trigger the new provisions.
TIP: This proposed change means that employees will lose their ability to pay for in-house benefits with pre-tax salary without their employer incurring FBT.
However, it is essential to note that the concessional treatment of in-house benefits will be retained where the benefits are not provided via salary sacrifice. If you have any questions, please contact our office.
Goods taken from private stock
The ATO has updated the amounts the Commissioner will accept for 2012–2013 as estimates of the value of goods taken from trading stock for private use by taxpayers in certain specified industries.
For example, for a restaurant/cafe (licensed), the Commissioner will accept $4,350 (excluding GST) for each adult or child over 16 years of age. Note that the ATO intends to adjust the values annually.
Finance Newsletter – February 2013
Good news for all borrowers – the banks have broken up with the Reserve Bank.
This means if you look around you are likely to find a better rate than you currently have. Use this opportunity to speak with a mortgage broker to ensure your bank is looking after you and that you have the best loan for your circumstances.
Some banks are currently offering great discounts on home and investment loans. Fixed and variable.
You may be able to save interest by fixing your home loan . You may be able to fix for 1-5 years at a lower rate then you currently have. Why wait for variable rates to go down. Switch to a lower rate now.
A great fixed rate is available from the Commonwealth Bank. You can get a fixed rate of 5.29% for 3 years. Compare that with your bank’s current offering? There are many benefits of using a mortgage broker and our services are provided to the borrower free of charge.
Call Dan Goodridge on 0414 423 340 or e-mail dg@iinet.net.au at Mercia Finance for obligation free finance information.