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Finance Newsletter May 2013
May 13, 2013 | 
Author Where are Interest rates going?
Reading the business press and thinking of fixing your home or investment loan?
There are some great variable and fixed rates available.
5.35% variable with the Commonwealth Bank
And 4.89% fixed for 2 years with citibank. This includes a free 60 rate lock.
If you are not sure if you have the best loan, we can help you look at your options and may be able to help you get a better rate.
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Remember that Mercia finance brokers can assist you with car loans, home loans, Lo-Doc home loans for the self employed, construction loans and any other type of mortgage or loan. Our service is free of charge to you the borrower and we have access to all the major lenders in WA.
A Mercia Mortgage broker can give you independent advice and comparisons between all the major lenders.
All these services are provided by our friendly and professional mortgage brokers at no cost to you – so you have nothing to lose and everything to gain.
If you would like to speak to a broker, call Dan Goodridge on 0414 423 340 or e-mail dg@iinet.net.au
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Tax Newsletter May 2013
Tax planning
There are many ways in which taxpayers can take advantage of tax planning initiatives to manage their taxable incomes. In order to maximise these opportunities, taxpayers need to start the year-end tax planning process early. Of course, when undertaking tax planning, taxpayers should be cognisant of the potential application of anti-avoidance provisions. However, if done correctly, tax planning can provide possible tax savings.
Deferring income
Income received in advance of services to be provided will generally not be assessable until the services are provided.
- Taxpayers who provide professional services may consider, in consultation with their clients, rendering accounts after 30 June to defer the income.
- A taxpayer is required to calculate the balancing adjustment amount resulting from the disposal of a depreciating asset. If the disposal of an asset will result in assessable income, a taxpayer may want to consider postponing the disposal to the following income year.
- Consider whether the criteria for classification as a small business entity are satisfied to access various tax concessions such as the simpler depreciation rules and the simpler trading stock rules.
- Individuals operating personal services businesses should ensure that they satisfy the relevant test to be excluded from the personal services income regime, or seek a determination from the Commissioner.
Maximising deductions
Business taxpayers
- Debtors should be reviewed prior to 30 June to identify and to write off any bad debts.
- A deduction may be available on the disposal of a depreciating asset if a taxpayer stops using it and expects never to use it again. Therefore, asset registers may need to be reviewed for any assets that fit this category.
- Review trading stock for obsolete stock for which a deduction is available.
- Non-business taxpayers
- A deduction for personal superannuation contribution is available where the 10% rule is satisfied.
- Assets costing $300 or less may qualify for an immediate deduction, subject to certain conditions.
- Outgoings incurred for managed investment schemes may be deductible.
Companies
- Companies should ensure that all dividends paid to shareholders during the relevant franking period (generally the income year) are franked to the same extent to avoid breaching the benchmark rule.
- Loans, payments and debts forgiven by private companies to their shareholders or associates may give rise to unfranked dividends that are assessable to the shareholders or associates. Shareholders and entities should consider repaying loans and payments on time or have appropriate loan agreements in place.
- Companies should consider whether they have undertaken eligible research and development (R&D) activities that may be eligible for the R&D tax incentive.
- Companies may want to consider consolidating for tax purposes prior to year-end in order to reduce compliance costs and take advantage of tax opportunities available as a result of the consolidated group being treated as a single entity for tax purposes.
- Companies should carefully consider whether any deductions are available for any carry forward tax losses, including analysing the continuity of ownership and same business tests.
Trusts
- Taxpayers should review trust deeds to determine how trust income is defined. This may have an impact on the trustee’s tax planning.
- Trustees should consider whether a family trust election (FTE) is required to ensure any losses or bad debts incurred by the company will be deductible and to ensure that franking credits will be available to beneficiaries.
- If a trust has an unpaid present entitlement to a corporate beneficiary, consideration should be given to paying out the entitlement by the earlier of the due date for the lodgment of the trust’s income tax return for the year and the actual lodgment date, in order to avoid possible tax implications.
- Avoid retaining income in a trust because the income may be taxed at 46.5%.
Capital gains tax
- A taxpayer may consider crystallising any unrealised capital gains and losses in order to improve their overall tax position for an income year.
- Eligible small business entities can access a range of concessions for a capital gain made on a CGT asset that has been used in a business, provided certain conditions are met.
Superannuation
- The ATO has reminded taxpayers to consider the superannuation contributions caps and the timing of when contributions are made when planning their tax affairs, in order to avoid excess contributions tax.
- Eligible individuals who breach the concessional contributions cap by up to $10,000 will be given a once-only option for the excess contributions to be refunded without penalty.
- A member of an accumulation fund (or whose benefits include an accumulation interest in a defined benefit fund) may be able to split with their spouse superannuation contributions.
- A tax offset of up to $540 is available for a resident taxpayer in respect of eligible contributions made by the taxpayer to a complying superannuation fund or a retirement savings account for the purpose of providing superannuation benefits for the taxpayer’s low-income or non-working resident spouse (including a de facto spouse).
- Taxpayers aged 50 years or over should review their transition to retirement pensions and salary-sacrificing arrangements to take into account the reduction in the concessional cap from $50,000 to $25,000 for 2012–2013 and 2013–2014. However, note that the Government proposes to increase the concessional contributions cap to $35,000 for seniors.
- For eligible individuals, a government low income superannuation contribution of up to $500 will be available.
Fringe benefits tax
- The living-away-from-home (LAFH) rules have been significantly overhauled. While the rules remain in the FBT regime, there is an increased requirement to ensure LAFH payments are properly tracked, categorised and substantiated.
- The four rates used in the statutory formula method for determining the taxable value of car fringe benefits are being replaced with a single statutory rate of 20%. Taxpayers should review contracts for changes to a ”pre-existing commitment”.
- The Government has proposed amending the FBT law to remove the concessional FBT treatment for in-house fringe benefits accessed by way of salary-packaging arrangements.
- Individuals
- For 2012–2013 and later income years, the dependent spouse tax offset will only be available to those born on or before 1 July 1952.
- The Government has announced that it will remove the 50% CGT discount for foreign residents on capital gains accrued after 7.30pm (AEST) on 8 May 2012. However, the CGT discount will remain available for capital gains that accrued prior to this time where foreign residents choose to obtain a market valuation of assets as at 8 May 2012.
Property Newsletter – April 2013
Thinking of Investing in Property Using a SMSF? Be Careful who you Trust
It seems everywhere you look at the moment there are people and businesses proclaiming the benefits of investing in property using a Self Managed Super Fund (SMSF). SMSFs have definitely grown in popularity with property investors, especially since regulations changed in late 2007 allowing funds to borrow money to invest.
This change essentially created a massive pool of money that many property developers and marketers want a piece of. With many companies claiming they can help investors set up a SMSF and manage the entire purchase process, it’s important that investors stay vigilant and put their trust in the right people.
The main trap is assuming that a company promoting the benefits of investing in property via a SMSF is qualified to offer property investment advice, which isn’t the case. While SMSFs are a financial product and heavily regulated, property investment advice isn’t. This means that just about anyone can advise you on where and what to buy without worrying about the consequences.
The risks that come with obtaining inadequate advice are significant, especially when the advice involves a SMSF. As with any form of property investment, there are obvious risks, such as paying too much or acquiring a poor performing asset. But there are other risks such as choosing a type of property that isn’t right for your long term retirement plan. Given the strict nature of SMSFs, it becomes even more important to make the right investment decision as it may be very difficult to correct the problem later on.
Who should investors rely on to guide them through the process of investing in property via a SMSF? Many investors are confused.
A problem in the SMSF space is the ‘promoters’ who take advantage of ill-informed investors. With the natural complexity that comes with investing via a SMSF, it’s easy to see how investors could be vulnerable to unscrupulous operators who have a financial interest in leading investors to a particular type of property.
Property promoters can be very persuasive and it’s clear why they would target people with a SMSF or those looking to set one up. The problem lies in the fact that these promoters will often have either direct or indirect links to a developer who is looking to sell property new or off the plan. On the surface, this property may seem to stack up as a good investment but the reality is that it often turns out to be dud.
In their haste to get a slice of the SMSF pie, some property promoters haven’t fully understood the many regulations governing SMSF investment, especially when borrowing is involved. This can lead to all sorts of problems for the investor. The trustee of a SMSF has various obligations under the law and if the fund is structured or managed incorrectly, problems may arise that can’t corrected without unwinding the fund and selling the asset. There can even be penalties for the trustee.
Another major risk for investors with a SMSF is that their “advisor” hasn’t bothered to understand the investor’s broader financial circumstances and long term goals, making it impossible to determine whether or not the investment decision makes sense.
While property is a long term asset, this isn’t an excuse to be careless with investment decisions, hoping that everything will work out over time. The long term nature of property investment means there is a significant need to make the right decisions as they will likely impact directly on your retirement years when your financial position is more restricted. Property investing with a SMSF is not a get-rich-quick scheme. It takes careful planning, dedication and requires a detailed understanding of the asset in question.
Property investing with or without a SMSF is a significant step and it’s important to get the right advice from the right people. Investors should seek appropriate specialist financial and legal advice to set up a SMSF, then a property investment expert to help identify and secure the right type of property. A finance broker should be employed to assist with obtaining finance and ideally a property manager would take the responsibility for the management of the property.
Investors should also be aware that investing via a SMSF can be quite complex and take longer than it would buying property outside of a fund. So it’s important to get reliable, independent advice before making an offer on a property. And this advice must be consistent with your plan for retirement. Your property advisor should understand your financial obligations and what you want to achieve in retirement before discussing what types of investments can provide for that goal.
Confidence in WA is Rising Along with the Median Price
People’s fears about the economy are fading quickly and being replaced with an increased sense of optimism, as the property market continues to rise.
Consumer confidence has bounced back in Western Australia, according to the latest Curtin Business School-Chamber of Commerce and Industry (CCI) survey.
The survey confirms what many people already suspected, that people’s fears about the economy are fading quickly and being replaced with an increased sense of optimism. In fact, Western Australians are now more optimistic than they have been for nearly two years.
Survey results show that the proportion of households expecting economic conditions to improve in the next three months had effectively doubled since the last survey. Furthermore, the number of households that think economic conditions will get worse has plunged to a record low of 8%.
CCI chief economist John Nicolaou said households were feeling more confident about their finances after almost two years of consolidation through increased savings and paying down debt.
This is a very good sign for the housing market, which is already seing upward movement. According to the Real Estate Institute of Western Australia (REIWA), the median price in Perth hit $500,000 in the December quarter, higher than originally reported and 6.4% higher than the previous year.
Based on preliminary figures for the first 3 months of 2013, REIWA expect the median price will hit at least $510,000 in the March quarter, which was the previous record high from early in 2010.
The rental market also continues to see growth. In the three months to February, REIWA figures show metropolitan rents increased by 4.4%, lifting the overall median from $450 to $470 per week, which is $60 more than the same time last year.
Property Acquisitions: Working with a Buyer’s Agent – Part 2
Last month we discussed the first step in working with a buyer’s agent, which focused on goal setting and the gathering of requirements. With a personalised plan in place, the next step concerns the property search.
This stage involves the buyer’s agent sourcing suitable investment properties through both on-market and off-market channels, focusing on the areas recommended in the first stage. A good buyer’s agent has a detailed understanding of what’s happening in different areas that could potentially impact on property values and will exploit this knowledge for the benefit of the investor.
The buyer’s agent will scan the market for suitable properties, making initial enquiries with real estate agents and visiting home opens, in order to find properties that both meet the criteria and are competitively priced. Buyer’s agents are property experts who keep up to date with price movements and so they can recognise when a property is competitively priced.
Most buyer’s agents will have established relationships with sales agents who will inform them about properties before they are launched to the market.
Depending on the type of property being sourced, a buyer’s agent may also attempt to identify property that may be purchased off market (i.e. not listed with a real estate agent). These off-market properties are purchased directly from vendors and can often be acquired at an excellent price as the seller isn’t paying a sales commission.
After some preliminary research, the buyer’s agent will form a short-list of suitable properties and present the investor with a key summary about each property. This summary will include an appraisal of the property using comparable sales data to determine its market value. The buyer’s agent may also provide information uncovered during initial investigations such as why the seller has decided to sell and the history of the property.
The investor will then review the information and select which of the properties are of interest. Some investors may choose to inspect the property before an offer is placed, others will leave everything to the buyer’s agent. The investor isn’t obligated to proceed and can instruct the buyer’s agent to continue with the search should no property be of interest.
Once there is a property of interest, the buyer’s agent will meet with the investor to discuss a ceiling price for the property and devise an optimum negotiation strategy that will ensure the property is acquired at the best possible price. Representing the best interests of the investor, the buyer’s agent will also look to secure the most favourable terms and conditions.
Next month we’ll explain what happens when an offer is placed on a property.
Does Splitting a Loan Provide the Best of Both Worlds?
One of the major decisions a borrower will have to make is whether to go for a variable rate loan or a loan with a fixed interest rate. But why choose one when you can have both?
There are many different loans available to property buyers, each with different features and advantages, which can make choosing a loan a difficult process. One of the major decisions a borrower will have to make is whether to go for a variable rate loan or a loan with a fixed interest rate. But why choose one when you can have both?
There are many borrowers who are opting to split their loans into two accounts, one on a variable rate and one on a fixed rate. Loans can be split in many ways dependent on the needs of the borrower, such as 60% variable and 40% fixed, but 50/50 splits are most common.
The reason for splitting a loan is to provide the security of a fixed rate home loan with the added flexibility of a variable rate loan. It’s a form of hedging that may be useful in times of economic uncertainty, particularly when interest rates are rising. Someone with a split loan will be less impacted by rate rises as it will only affect a portion of their loan. However, by maintaining a portion of the loan with a variable rate means the borrower still benefits from rate reductions.
Another benefit of a split loan over, say, a 100% fixed loan, is that the borrower still has the flexibility of a variable loan, such as the ability to make additional repayments and redraw (on the variable part). These features aren’t typically available on a fixed loan but can be very useful as the circumstances of the borrower change.
So what are the disadvantages of a split loan? The nature of a split loan means that the borrower, though protected partly from rate increases, doesn’t benefit fully from a rate reduction. This can prove quite costly if rates drop significantly during the term of the fixed portion of the loan.
Also, splitting a loan may incur twice the fees for setting up, managing and later discharging the loan, which borrowers should consider. Clearly, there are a few things to consider when deciding whether to split or not.
As everyone’s situation is different and loans have many subtle differences, the advice of a professional, qualified finance broker should always be sought before making any borrowing decisions.
Property Management: Drugs and Tenants are a Worrying Mix
There have been a number of cases across the country involving drugs or drug labs being found in rental properties, which might have caused investors some concern.
Late last year in Adelaide, a tenant got in trouble with police after the photos used in a real estate ad showed cannabis being grown in two pot plants in the backyard of the house. One would have to assume that the property manager failed to either notice or identify the plants before placing the ad.
There was also a particularly worrying case in Melbourne more recently where the real estate agents themselves were charged with a number of drug-related offences after 25 rental properties they managed were allegedly used to grow hydroponic marijuana.
If you think it should be easy to spot a ‘drug house’, think again. In some cases the properties containing drug labs were actually found to be excellently maintained and even the gardens were in good shape.
One of the questions investors may be asking is regarding insurance. Are you covered by landlord’s insurance if your tenant is found to be illegally producing drugs in your property? It’s a bit of a grey area and something a policy holder should discuss directly with their provider.
But the issue isn’t necessarily to do with “damage” to a property. The clean-up costs involved in dismantling a drug lab can be significant even when there is technically no damage done to the property. Some polices may cover these costs, others won’t.
One thing is certain, that investors should take care when choosing a property management company. In particular, they should make sure the company has a thorough, rigid process for vetting prospective tenants and a policy of conducting regular inspections.
When it comes to the property management companies promoting ridiculously low fees, you have to question how many shortcuts they are taking when it comes to the tenant selection process or the management of your property.
Suburb Snapshot: Belmont
Belmont is located just 7 kilometres east of Perth’s central business district on the southern bank of the Swan River and part of the City of Belmont. It neighbours the suburb of Ascot to the north, Redcliffe to the east, Cloverdale to the south, and Rivervale to the west.
While some associate the suburb with its considerable industrial and commercial district, mainly concentrated in the western part of the suburb, Belmont is also a popular place to live especially in the eastern and northern parts of the suburb.
The suburb’s north-western boundary is Great Eastern Highway, a major road that passes Perth Airport and is home to various motels and other accommodation.
Belmont has two public schools, Belmont Primary School and Belmont City College (formerly Belmont Senior High School), as well as a number of parks and recreational areas, including the popular Centenary Park and Signal Hill Bushland.
Residents of Belmont have a variety of retail options including Belmont Forum, a major shopping complex located in neighbouring Cloverdale, which also includes a cinema and entertainment facilities.
The median house price in Belmont is around $480k but this figure masks the wide range of housing options and price points available in the suburb. There are villas for sale from $350k to 450K, older houses on big blocks from $450k to $550k, townhouses in the mid to high $500k’s, modern homes from $600k to $900k and development sites anywhere from $550k to $900k depending on size and location.
The suburb has a relatively high proportion of renters, with 44% of properties currently being rented, and the median rent is an affordable $300 per week.
In terms of capital growth, Belmont has performed excellently both over the short term and the long term, consistently outperforming the wider Perth market. The growth rate over the past 12 months was an impressive 10.2%, which is in line with the 10 year average of 10.7% per annum.
Belmont has been transforming rapidly since the City of Belmont’s Local Planning Scheme No 15 was gazetted on 1 December 2011. The Scheme and associated Housing Strategy gave parts of the suburb higher zoning to encourage increased housing density and provide opportunities for developers. In fact, the Scheme more than doubles the density target set at State level in Directions 2031 and Beyond.
Also helping to transform Belmont is a major infrastructure project to upgrade Great Eastern Highway between Kooyong Road and Tonkin Highway, which covers the entire north-west border of Belmont. The $30 million project, jointly funded by the State and Federal Governments, will see a 4.2 km section of the highway upgraded to six lanes with a central median, on-road cycling facilities and a continuous pedestrian path. It will also involve upgrades to all major intersections and the introduction of bus priority lanes.
The project, which commenced in late June 2011 and has just been completed, should help to improve safety and connectivity for motorists, pedestrians and cyclists, reduce travel times, and increase the attractiveness of public transport services. It will also enhance the look of the area with new facilities and modern urban design.
Belmont will also benefit, at least in part, from Gateway WA, the largest infrastructure project ever undertaken by Main Roads WA. The $1 billion national priority project aims to improve the safety, attractiveness and efficiency of the main transport areas around the airport and the freight and industrial hubs of Kewdale and Forrestfield. The Gateway WA project incorporates road and bridge improvements, facilities and connections for pedestrians and cyclists, noise walls, landscaping and more.
For many investors, Belmont has been a hotspot for quite a while. With its strategic location between the city and the airport, a forward thinking council and various major projects enhancing the area, it should remain a strong investment option for some time more.
| Growth rate (1 year average) | 10.2% |
| Growth rate (5 year average) | 2.4% |
| Growth rate (10 year average) | 10.7% |
| Population | 6,263 |
| Median age of residents | 34 |
| Median weekly household income | $1,197 |
| Percentage of rentals | 44% |
Source: REIWA.com.au, March 2013
Finance Newsletter – April 2013
Interest rates on the rise?
Reading the business press and thinking of fixing your home or investment loan?
Speak to a Mercia mortgage broker about your options. We have access to some great fixed rates available for those who think rates are on the rise.
Below is an example of a current rate from a major Bank. This loan (with commonwealth Bank) is available with no application fees. That means that now you may be able to re-finance your mortgage to a lower rate, fixed or variable, with no fees or charges.
Fixed Rate Mortgage Loan
These rates are available for investors, owner occupiers, principal and interest and interest only loans. Rates are currently as low as 4.99% fixed for 2 years.
If you have any questions about Family Equity, Reverse Mortgages or any other type of loan including residential loans, investment loans or first home buyers loans 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.
All these services are provided by our friendly and professional mortgage brokers at no cost to you – so you have nothing to lose and everything to gain.
If you would like to speak to a broker, call Dan Goodridge on 0414 423 340 or e-mail dg@iinet.net.au
Tax Newsletter April 2013
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.