CURRENCY:

This issue of Client Alert takes into account developments up to and including 18 February 2022.

Keeping you informed about the Federal Budget

We expect to see confirmation from Treasury soon about when the Australian Government will hand down its Federal Budget for 2022–2023. This being an election year, early Budget delivery – perhaps as soon as Tuesday 29 March – is likely.

The Client Alert team will, as usual, work to bring you a special Budget Extra edition that outlines the key announcements to assist you in dealing with your clients’ queries. You can expect to receive it by the morning after the Budget is handed down.

Work-related COVID-19 tests may be deductible

After the recent furore over the non-existent supply of rapid antigen tests (RATs) and the reduced availability of polymerase chain reaction (PCR) tests at many COVID-19 testing sites, the Federal Government is hoping for some good press with the announcement that it will legislate to make both PCR tests and RATs tax-deductible for individuals who buy them for a work-related purpose.

According to the government’s proposal, deductibility of tests will take effect from the beginning of the 2021–2022 tax year (that is, starting 1 July 2021) and will be ongoing. Individuals will also be able to deduct the cost of a test regardless of whether they are required to attend the workplace or have the option to work remotely.

How people will benefit from this proposal depends on their individual tax rate. As a simple example, assuming that there are 249 working days in a year and that each RAT costs $20, if an employee was required to take a RAT every day that they worked, the total cost over the year would be $4,980. If that employee made the minimum wage rate of $20.33 per hour and worked 7.5 hours each day, then their yearly before tax income would be $37,966.

Based on that before-tax income, the individual would usually have to pay around $3,755 in tax. If the deduction for the COVID-19 tests was included, it would reduce the tax paid to $2,809 – a tax saving of $946 to the individual for the year. However, given that the initial test outlay for the entire year could be close to $5,000, the deduction certainly wouldn’t have the same monetary effect as to providing free tests to essential and hospitality workers.

For businesses that are able to obtain enough RATs for their workforce, the government has also proposed to make COVID-19 tests provided by employers to employees exempt from FBT, if they are used for work-related purposes. This essentially means that the tests would be excluded from the definition of a fringe benefit, and employers would not have to pay FBT on the costs of tests given to their employees in a work-related context.

With the Federal election fast creeping up, there doesn’t seem much time for this proposal to be introduced in Parliament and passed into law, especially given the lack of timeframes provided and the myriad of previous election promises also yet to be legislated. A possible change in government may even mean that this proposal remains just that, or we later see different arrangements altogether. There is uncertainty as to whether a Labor government would champion this specific tax-deductibility measure, in particular due to their election pledge of providing free RATs to all Australians through Medicare.

With all this in the background, the ATO has not provided any detailed advice or guidance on the practical aspects of this proposal. In the interim, it recommends that individuals and/or businesses incurring expenses for COVID-19 tests should keep a record of the expenses (receipts or other documentary evidence of purchase), to make the process straightforward should they become deductible in the future.

Natural love and affection: commercial debt forgiveness

The ATO has recently finalised its stance on the issue of commercial debt forgiveness – in particular, the “natural love and affection” exclusion.

A commercial debt is any debt where interest payable is deductible, or would be deductible if interest were payable, but for certain statutory restrictions. Under this definition, investments that are securities and equity for debt swaps could be included.

Under the commercial debt forgiveness provisions, if a taxpayer’s obligation to pay the debt is released, waived, or otherwise extinguished (ie by agreement, parking of debt, repurchase, redemption etc), the amount forgiven will be deducted from the taxpayer’s current and future tax deductions. Specifically, the amount forgiven will reduce prior-year revenue losses, prior-year net capital losses, undeducted balances of other expenditure being carried forward for deduction, and the CGT cost base of other assets held, in that order.

Given that commercial debts forgiven may mean a business will have to pay more tax, it can be advantageous if debts the business has forgiven are not captured under the commercial debt forgiveness provisions. The exclusions available include forgiveness of a debt that is effected under an Act relating to bankruptcy or by will, and a natural person’s forgiveness of a debt for reasons of natural love and affection for the debtor.

Before 6 February 2019, the natural love and affection exclusion to commercial debt forgiveness didn’t require the creditor who forgave a debt to be a “natural person”. This meant that a company, through its directors, could forgive the debts of an individual, giving the reason of natural love and affection for the individual, and this would not have been considered a commercial debt forgiveness, meaning a lower tax bill for the company.

Then, the ATO released a draft determination on 6 February 2019 which explicitly stated that the exclusion for debts forgiven for reasons of natural love and affection requires the creditor to be a natural person. This view has been confirmed in the finalised determination, which the ATO recently released.

Delving a little deeper into the final determination: while the ATO states that a debt-forgiving creditor must be a natural person and the object of their love and affection must be one or more other natural persons, where the conditions for the exclusion are otherwise satisfied, there is no requirement that the debtor must also be a natural person. For example, this means that the natural love and affection exclusion can apply in circumstances where the debtor is a company, such as where a parent (a natural person) forgives a debt they are owed by a company that is 100% owned by their child or children.

The natural love and affection exclusion to commercial debt forgiveness may also apply in instances where a natural person forgives a debt owed to a trust or partnership, in their capacity as a trustee of the trust or as a partner in the partnership, respectively. The ATO’s determination points out that cases where this could happen would be limited, given limitations that arise under trust and partnership law principles, statute and terms of any trust deed or partnership agreement.

According to the ATO, whether a creditor’s decision to forgive a debt is motivated by natural love and affection for a person needs to be determined on a case-by-case basis. In addition, while the ATO will not devote compliance resources in relation to debts forgiven before 6 February 2019, if required to state a view in a private ruling or litigation the Commissioner of Taxation will do so consistently with the views set out in the final determination.

Source: www.ato.gov.au/law/view/document?docid=TXD/TD20221/NAT/ATO/00001

Last chance to claim the loss carry-back

Businesses that need a little more financial help will have one last opportunity to claim the loss carry-back in their 2021–2022 income tax returns. Businesses that have an early balancer substituted account period (SAP) for the 2021-22 income year are eligible to claim the loss carry-back offset before 1 July 2022.

To recap, the loss carry-back is a refundable offset that effectively represents the tax that the business would save if it had been able to deduct the loss in an earlier year using the loss year tax rate. It may result in a cash refund, a reduced tax liability, or reduction of a debt owing to the ATO. Eligible businesses include companies, corporate limited partnerships and public trading trusts.

A company, corporate limited partnership or public trading trust may be eligible if it made a tax loss in 2021, carried on a business with an aggregated turnover of less than $5 billion, had an income tax liability in 2019 or 2020, and has met all of its lodgment obligations for the five prior income years.

Loss carry-back can either be claimed by businesses through their standard business reporting enabled software, where it has the additional loss carry-back labels required, or by using the paper copy of the company tax return 2021 and attaching a schedule of additional information to report the extra aggregated turnover and loss carry-back labels required (because these are not included in the company tax return 2021 itself).

For example, if a business is carrying back a tax loss from the 2021–2022 income year, the additional information needed includes the income year the business is choosing to carry the loss back to, the tax losses incurred, net exempt income, the income tax liability for the prior year, and the aggregated turnover range of the business.

Since there are so many additional labels which may need to be completed, the ATO has developed a loss carry-back tax offset tool which will assist businesses that are claiming the loss carry-back before 1 July 2022 to determine which labels are relevant in their unique situations. Once all of the relevant information is provided, the tool will first determine whether the business is eligible to claim the loss carry-back tax offset, then calculate the maximum amount of tax offset available. It will also provide a printable report of the labels which will need to be completed.

However, to use the tool, businesses will need to have the following information handy:

• income tax lodgment history;
• for the 2019–2020 and later income years, details of the loss that was made, including the amount of tax losses, the tax rate and the aggregated turnover for that year and the prior year;
• for the 2018–2019 and later income years, details of the tax liability, including the amount, and any net exempt income; and
• opening and closing balances of the franking account for the income year that is being lodged (ie 2021–2022).

If your clients’ businesses have been battered by the latest COVID-19 wave, they may be able to take advantage of this refundable offset one last time. Remember, the offset effectively represents the tax that the business would save if it had been able to deduct the loss in an earlier year using the loss year tax rate. Because the offset is refundable, it may result in a cash refund, a reduced tax liability, or reduction of a debt owing to the ATO, all of which should help with cash flow.

Source: www.ato.gov.au/business/loss-carry-back-tax-offset/

www.ato.gov.au/Calculators-and-tools/Loss-carry-back-tax-offset-tool/

Tax debts may affect business credit scores

The ongoing COVID-19 pandemic has caused uncertainty in many parts of the economic and has led to what many experts term a “two-speed economy”: while some businesses are recovering well, others continue to suffer from the effects. If your clients’ businesses have had issues paying debts, or have prioritised trade debts ahead of tax debts, remember that these actions may lead to penalties and have a lasting impact on the business.

The best option is to engage with the ATO to manage business debts. Failure to get in touch with the ATO to come to an arrangement will not only affect the potential penalties imposed, but may also affect a business’s credit score.

Laws were passed in 2019 which allow the ATO to disclose information about overdue business tax debts to credit reporting agencies including Equifax, Experian and Illion. The laws were originally promoted as a way to support businesses in making more informed decisions about dealings with various parties by making overdue tax debts more visible. The flow-on effects from that include reducing unfair financial advantages obtained by businesses that do not pay their tax on time, and encouraging businesses to engage with the ATO to manage their tax debts to avoid having those debts disclosed.

To protect taxpayers, the laws passed contained some safeguards. Not all tax debts can be disclosed by the ATO. The following criteria must be met for a business’s debt to qualify for disclosure:

• the business has an ABN and is not an excluded entity (excluded entities include deductible gift recipients, complying super funds or self managed super funds, registered charities and government entities);
• the business has one or more tax debts, of which at least $100,000 is overdue by more than 90 days;
• the business operators have not engaged with the ATO to manage the debt; and
• there is no active complaint with the Inspector-General of Taxation and Tax Ombudsman regarding the ATO’s intent to report tax debt information.

Even if a business debt satisfies these criteria, where exceptional circumstances apply to the situation the ATO may still have the discretion to not report the debt information to credit reporting agencies. “Exceptional circumstances” may include, but are not limited to, family tragedy, serious illness and the impact of natural disasters. The ATO will assess claims of exceptional circumstances on a case-by-case basis.

It should be noted that the ATO does not consider cash flow issues nor financial hardship to be exceptional circumstances, although it still recommends that taxpayers who are experiencing these issues initiate ATO contact as soon as possible to discuss debt management options. For example, where a business has been affected by COVID-19, the ATO has committed to additional administrative support in the areas of lodgment and payment.

Before any debt is disclosed to credit reporting agencies, the ATO is required to send the business a written notice confirming its intent to report the debt information, and setting out the criteria that the business has met and the debt information that will be disclosed. The letter will also outline the steps which the business can take to avoid having the tax debt reported – and these need to be taken within 28 days of receiving the notice. Business owners who believe that the ATO has made a mistake or who disagree with a disclosure decision are advised to contact the ATO immediately upon receiving a notice.

Source: www.ato.gov.au/General/Paying-the-ATO/If-you-don-t-pay/Disclosure-of-business-tax-debts/

https://moneysmart.gov.au/managing-debt/credit-scores-and-credit-reports

Contributions into SMSFs: minimum standards

There are many compliance obligations for trustees of self managed superannuation funds (SMSFs). One of the simplest but most important is ensuring that contributions from members can be accepted into the fund. This involves reporting the tax file numbers (TFNs) of members to the ATO, ensuring non-mandated contributions are not accepted for members over a certain age, and observing certain restrictions on in specie (asset) contributions. If an SMSF inadvertently accepts a non-allowable contribution in error, it must generally be returned within 30 days of the fund becoming aware, otherwise breaches of the contribution rules may occur.

Broadly, whether a contribution to an SMSF can be accepted depends on the type of contribution, the age of the member making the contribution, certain caps, and whether the fund has the TFN of the member.

When a member joins an SMSF, they need to provide their TFN, which then needs to be passed on to the ATO through the registration process. It should be noted that members are not legally required to provide their TFNs. However, if a TFN is not provided, the fund cannot accept certain member contributions, including personal contributions, eligible spouse contributions and super co-contributions. Employer contributions, including salary sacrifice contributions and other assessable contributions, may also be liable for additional income tax of 32% on top of the 15% tax already paid.

As a trustee, you must ensure that any TFNs reported to the ATO for members are correct. If you do not know a member’s TFN, you cannot report an exemption code such as 444 444 444. According to the ATO, exemption codes like this are intended for use by banks/investment bodies for an exemption from withholding tax on interest and other investment income, and are not for use when an SMSF member has not provided a valid TFN to the trustee.

In circumstances where an SMSF mistakenly accepts a contribution it should not have, the fund must return it within 30 days of becoming aware of the error. The 30-day limit is a grace period allowing the fund to remove the contributions from the super system without breaching the payment or contribution rules. Failure of the SMSF to comply with the time limit does not affect the fund’s legal obligation to return contributions.

Even if a member has provided their TFN, the type of a contribution combined with the age of the member can affect what is acceptable. For example, mandated employer contributions such as super guarantee contributions from a member’s employer can generally be accepted at any time, regardless of the member’s age or the number of hours they work. Non-mandated contributions largely cannot be accepted if a member is aged 75 years or older.

Non-mandated contributions include the following:

• contributions made by employers over and above super guarantee or award obligations (that is, salary sacrifice contributions); and
• member contributions, including personal contributions, downsizer contributions, super co-contributions, eligible spouse contributions and contributions made by a third party such as an insurer.

Lastly, there are restrictions on when an SMSF can accept an asset as a contribution from a member. These are referred to as “in specie contributions”, which just means contributions to the fund in the form of a non-monetary asset. Generally, an SMSF must not intentionally acquire assets (including in specie contributions) from related parties to the fund; however, there are exceptions for listed shares and other securities, as well as business real property.

Source: www.ato.gov.au/Super/Self-managed-super-funds/Contributions-and-rollovers/Contributions-you-can-accept/

SMSFs investing in crypto-assets: be informed and keep records

According to the Australian Securities and Investments Commission (ASIC), there has recently been a surge of promoters encouraging individuals to set up self managed superannuation funds (SMSFs) in order to invest in crypto-assets. ASIC warns people to be aware that while crypto-asset investments are allowed for SMSFs, they are high risk and speculative, as well as being an attractive area for scammers targeting uninformed investors.

Seek reliable information

Current record low deposit rates and volatility in stock markets around the world have motivated many retirees to seek alternative asset classes to either protect their investments or get higher returns. In conjunction, there has been a noticeable increase in spruikers encouraging individuals to invest in crypto-assets through SMSFs, with many promotions recommending switching from retail or industry super funds in order to do so.

For example, late last year ASIC moved to shut down an unlicensed financial services business based on the Gold Coast that promised annual investment returns of over 20% by investing in crypto-assets through SMSFs. The money obtained was not invested, but instead allegedly used by the directors of the business for their own personal benefit, including acquiring real property and luxury vehicles in their personal names.

Professional advice should always be sought before deciding on whether an SMSF is appropriate for your circumstances, as there are risks involved in being the trustee of an SMSF, and any SMSF established must meet the “sole-purpose” test. Remember, SMSF trustees bear all the responsibility for the fund and its investment decisions complying with the law, and breaches may lead to administrative or civil and criminal penalties. This is the case even if you (as the trustee) rely on the advice of other people, licensed or otherwise.

SMSFs are not generally prohibited from investing in crypto-assets – if you do decide, after receiving appropriate advice, that investing in crypto-assets through an SMSF is right for your situation, you can do so. Careful consideration must also be given to the following factors:

• the fund’s governing rules: trustees need to ensure that any investments in crypto-assets are allowed under the particular SMSF’s deed;
• investment strategy: there should be documentation of how the SMSF’s investments will meet retirement goals, taking into account diversification, liquidity and the ability of the fund to discharge its liabilities; and trustees need to consider the level of risk for the proposed crypto-asset investments, including reviewing/updating the fund’s investment strategy to ensure they are permitted;
• ownership and separation of assets: crypto-assets must be held and managed separately from any personal or business investments of trustees and members – the SMSF must maintain and be able to provide evidence of a separate crypto-asset “wallet”; and
• valuation: SMSFs must obtain fair market valuations for their crypto-assets for the purposes of calculating member balances.

Other considerations include restrictions on related-party transactions (that is, if you currently own crypto-assets and want to transfer them to the SMSF for various purposes, you will be unable to do so), and potential CGT consequences when an in specie lump sum payment of crypto-assets occurs upon a condition of release.

Keep your records in order

If you do decide to invest in crypto-assets, whether through an SMSF or as an individual investor, it’s also important to keep accurate records and ensure you report any related income to the ATO.

Each time you transact in crypto, the ATO requires you to keep a record of:

• the date and value of the cryptocurrency (or digital asset) in Australian dollars at the time of the transaction;
• what the transaction was for; and
• who the other party was (a cryptocurrency address is sufficient).

You must keep these records for at least five years after lodging the relevant return or form.

The ATO started its first crypto data-matching program in April 2019, comparing taxpayer self-reported income to cryptocurrency transaction data for the 2015–2020 financial years. This program was expanded mid-last year to cover the 2021–2023 financial years, and the ATO will no doubt continue to gather and compare data into the future under subsequent programs. Records relating to between 400,000 and 600,000 individuals will be obtained each financial year under the current program.

The ATO sources its data from designated service providers (DSPs) or entities providing a designated service under Australia’s anti-money laundering/counterterrorism legislation. It may also obtain data from other sources.

A designated service is any service that exchanges, issues, transacts or deals in digital currency. This includes centralised cryptocurrency exchanges, exchanges that convert fiat currency to cryptocurrency (or vice versa) or other designated or regulated entities.

The ATO’s legal power to gather information is extensive and includes the power to physically enter any place and inspect any document, good or other property – this extends to a physical cryptocurrency wallet. The ATO is also permitted by law to amend a taxpayer’s tax return for an unlimited period where it considers that fraud or evasion has occurred – and deliberate non-reporting of gains made from disposals of crypto-assets would meet this description. Possible penalties and interest are also a consideration.

Source: https://asic.gov.au/about-asic/news-centre/articles/warning-self-managed-super-funds-and-crypto-investments/

https://moneysmart.gov.au/investment-warnings/cryptocurrencies

www.ato.gov.au/super/self-managed-super-funds/in-detail/smsf-investing/smsf-investing-in-cryptocurrencies/

www.ato.gov.au/general/gen/tax-treatment-of-crypto-currencies-in-australia—specifically-bitcoin/

Client Alert returns in 2022

This is the final edition of Client Alert for 2021. The next edition will be published in February 2022.

We wish you all the best for the festive season and new year.

ATO Medicare exemption data-matching continues

The ATO has announced the extension of its Medicare exemption statement data-matching program. This program has been conducted for the last 12 years, and has now been extended to collect data for the 2021 through to 2023 financial years. It is estimated that information relating to approximately 100,000 individuals will be obtained each financial year.

The Medicare exemption statement (MES) is a statement that outlines the period during a financial year that an individual was not eligible for Medicare. It can be obtained from Services Australia. Individuals who are not eligible for Medicare will then be exempt from paying the Medicare levy in their tax returns.

If you live in Australia as an Australian citizen, a New Zealand citizen, an Australian permanent resident, an individual applying for permanent residency or a temporary resident covered by a ministerial order, then you are eligible to enrol in Medicare and receive healthcare benefits. However, this also means you need to pay Medicare levy at 2% of your taxable income to partly fund the federal scheme.

Individuals not eligible for Medicare benefits can apply for the MES to claim an exemption from paying the Medicare levy (and the Medicare levy surcharge if applicable) in their tax returns. The exemption needs to be applied for in each financial year that the individual is not entitled to Medicare benefits. The following people may be eligible to apply for an MES:

• Australian permanent residents who have lived outside of Australia for 12 months or more;
• temporary visa holders who have not applied for permanent residency;
• temporary visa holders who are not eligible for Medicare under a reciprocal health care agreement;
• New Zealand citizens who have spent less than six months in Australia within a 12-month period; and
• Australian citizens living overseas for five years or more.

The information that will be obtained as part of the ATO’s extended data-matching program includes MES applicants’ identification details, entitlement status and approved entitlement period details. The ATO will also match the number of days for which an individual claims they were not entitled to receive Medicare benefits with the information included in the MES.

The data collected will be used to ensure that exemptions claimed by taxpayers in their tax returns for the relevant years are correct, as well as to avoid the ATO unnecessarily seeking information from genuine claimants of the exemption.

In previous years of this data-matching program, the ATO was able to verify around 87% of the Medicare exemptions claimed in individual tax returns without needing to contact the taxpayers directly. However, the remaining 13% of taxpayers (around 11,000 individuals) who claimed Medicare exemptions were subjected to ATO review.

While the ATO has not detailed the specific compliance activity that may flow from the continuation of the program, this data-matching is expected to be used to promote voluntary compliance and develop educational strategies.

Building delays may cost you in more ways than one

Most of Australia has been experiencing a building boom, fuelled by government policy such as the HomeBuilder scheme and a general desire to make our living spaces better as we spend more time working, educating and living at home. However, with global supply chains and transport routes disrupted due to the effects of COVID-19, there have been well publicised material shortages and builder collapses in the sector. If you’re building or substantially renovating your home, any related delays you experience may also end up costing you when you decide to sell.

Individual Australian tax residents are able to access a capital gains tax (CGT) building concession, which in essence means you can treat either the land or the dwelling on the land as your main residence even while not living there during building or renovations. However, this concession only applies for a maximum of four years and is subject to certain conditions. Absent the concession, for example if your construction or renovation project has been substantially delayed by COVID-19, you may be slugged with CGT on sale of the residence.

For most individual Australian tax residents (not companies or trustees), there is an automatic exemption from CGT for the capital gain (or loss) that arises when you sell your home. This is called the “main residence exemption”. Generally, for the exemption to apply it must have been your main residence for the entire ownership period; however, exemptions may apply in instances where you’ve had to move out while building, renovating or repairing your residence.

The “building concession”, as it is known, allows an individual to treat a dwelling as their main residence from the time that the land was acquired for a maximum period of up to four years, subject to certain conditions. For example, the dwelling must become the individual’s main residence as soon as practicable after the construction, repair or renovation is completed, and must remain so for at least three months. The individual must also choose to apply the building concession.

The four-year maximum period applies from either the time you acquire the ownership interest in the land, or the time you cease to occupy a dwelling already on the land. If it takes more than four years to construct or repair the residence, you may only be entitled to a partial main residence exemption. This means that if you sell the residence at a future date, the period during which you didn’t live in the residence during construction or renovation will be subject to CGT.

Example

You purchase a piece of land for $100,000, intending to build a dwelling on it and live in it as your main residence. Due to various set-backs the dwelling isn’t completed within the four-year maximum period, but is eventually completed after five years. You move into the dwelling and live in it for another two years before you sell it for $300,000. The taxable capital gain in this circumstance that would roughly be $143,000 (ie capital gain adjusted by the ratio of non–main residence days to days in the ownership period).

As you can see, the financial consequences of getting it wrong are very real. If you are unable to complete your main residence construction or renovation project within the four-year maximum timeframe either due to the builder becoming bankrupt or due to severe illness of a family member, you may be able to apply to the ATO for discretion to extend the four-year period so you don’t get penalised financially.

Cryptocurrency scams on the rise

As investing in cryptocurrency becomes more popular in Australia, there is also a corresponding increase in the number of scams being reported. Due to the unregulated nature of cryptocurrency and the recent failure of two Australian cryptocurrency exchanges, this investment space has become a risky free-for-all, with Scamwatch estimating that around $35 million was lost to cryptocurrency scams in the first half of 2021. If you’re one of the unlucky ones to have been scammed, depending on the circumstances you may be able to claim a capital loss deduction.

Scamwatch, a part of the ACCC (Australian Competition and Consumer Commission), estimates that Australians lost over $70 million in investment scams in the first half of 2021. Of this $70 million, around half was lost in cryptocurrency scams, especially involving Bitcoin. Cryptocurrency scams were also incidentally the most commonly reported type of investment scam in 2021, with around 2,240 reports.

Cryptocurrency scams can come in a variety of forms, the most common being impersonation, where scammers pretend to be from a reputable trading platform and have legitimate-looking digital assets (eg fake trading platforms which look like the real thing, email addresses that approximate a genuine company they are impersonating, etc) to lure investors in. Investors who fall into this trap will usually see the initial money they invested skyrocket on fake trading platforms and may even be allowed to access a small return. Once people are hooked, though, the scammers will typically ask for further investments of large sums of money before cutting off contact and disappearing completely.

What to do if you think you’ve been scammed

People who think they’ve been scammed should contact their bank or financial institution as soon as possible. They can also contact IDCARE on 1800 595 160 or via www.idcare.org if they suspect they are the victim of identity theft. IDCARE is a free, government-funded service that will support individuals through the process.

People can alsomake a report to Scamwatch at www.scamwatch.gov.au/report-a-scam and to the Australian Securities and Investments Commission (ASIC) at https://asic.gov.au/about-asic/contact-us/how-to-complain/report-misconduct-to-asic/.

Are cryptocurrency losses from scams tax deductible?

Whether you can deduct a loss all boils down to whether you actually owned an asset. For example, if you actually owned cryptocurrency such as Bitcoin in a digital wallet and due to the collapse of an exchange all the cryptocurrency you owned has disappeared, then it is likely you can claim a capital loss. This is likely to also apply if the cryptocurrency you own is stolen in a scam.

According to the ATO, to claim a capital loss on cryptocurrency, you may need provide the following kinds of evidence:

• when the private key to the cryptocurrency was acquired and lost;
• the wallet address that the private key relates to;
• the costs you incurred to acquire the lost or stolen cryptocurrency;
• the amount of cryptocurrency in the wallet at the time of the loss of private key or access;
• evidence that the wallet was controlled by you (ie transactions linked to your identity) and that you are in possession of the hardware that stored the wallet; and
• transactions to the wallet from a digital currency exchange for which you hold or held a verified account or is linked to your identity.

If you have this supporting information, you will be able to claim a capital loss on your tax return in the year that the loss or theft of Bitcoin occurred. This can be offset against current year capital gains, or carried forward to offset future capital gains.

Unfortunately, it is unlikely that a deduction can be claimed (capital or otherwise) for individuals who have been scammed into handing over money for “cryptocurrency investment” in schemes where no actual cryptocurrency ownership occurred. This is because they have not technically lost an asset, as they did not own the cryptocurrency in the first place, and the money invested is not considered a capital gains tax (CGT) asset under Australian tax law.

Take care with small business CGT concessions

Recently, the ATO has noticed that some larger and wealthier businesses have mistakenly claimed small business capital gains tax (CGT) concessions when they weren’t entitled. By incorrectly applying the concessions, these businesses were able to either reduce or completely eliminate their capital gains. The ATO has urged all taxpayers that have applied the small business CGT concessions to check their eligibility. Primarily, this means that the business should meet the definition of a CGT small business entity or pass the maximum net asset value test.

Australia’s tax law provides four concessions to enable eligible small businesses to eliminate or at least reduce the capital gain on a CGT asset, provided certain conditions are met.

To be eligible to apply these CGT concessions, the business must have a maximum net asset value (ie the net value of assets owned by the business and related entities) of less than $6 million. Failing that, the business must qualify as a “CGT small business entity”. That is, it must be carrying on a business, and have an aggregate turnover of less than $2 million.

In addition, the CGT asset that gives rise to the gain must be an active asset, which just means it is an asset used in carrying on a business by either you or a related entity. It should be noted that shares in a company or trust interests in a trust can qualify as active assets although additional conditions may apply.

Once the basic conditions are satisfied, your small business can choose to apply one or all of the four CGT concessions provided the additional conditions to each concession is also met. Meeting all the conditions means that the concessions can be applied one after another, in some cases eliminating the entire capital gain. The concessions are as follows:

• 15-year exemption: The business may be entitled to a total exemption on a capital gain if the asset has been continuously owned for at least 15 years up to the time of the CGT event. Or, in cases where the CGT asset is a share or trust interest, the company or trust must have a “significant individual” for at least 15 years. For individuals (ie sole trader businesses), there is an additional condition that they must be at least 55 years of age and that the CGT event occurs due to either retirement or incapacitation.
• 50% active asset reduction: The business may be entitled to an automatic 50% reduction of a capital gain made on the disposal of an active asset if the basic conditions are satisfied, and the asset does not have to held for more than 12 months.
• Retirement exemption: A business that is an individual, a company or a trust may be able to choose to disregard all or part of a capital gain made from a CGT event, up to a lifetime limit of $500,000. Note, there is no age limit on using this concession, nor is there any requirement to retire, even though it is called the “retirement” exemption. However, individuals aged under 55 who apply this exemption must roll over the exempt amount to a complying superannuation fund.
• Rollover concession: A business can choose to roll over all or part of the capital gain and then acquire a replacement asset if the basic conditions are met. In the event that a replacement asset is not acquired within the required timeframe, the rolled-over capital gain will be reinstated.

The 15-year exemption takes precedence over the other concessions listed and is applied without first having to use prior year capital losses. If the 15-year exemption cannot be applied, then depending on the circumstances of the capital gain, the other concessions can be used in any order to reduce the amount of tax payable.

ATO concerns on luxury car tax

The ATO has issued an alert warning taxpayers that it is investigating certain arrangements where entities on-sell luxury cars without remitting the requisite luxury car tax (LCT) amount. This applies to those selling luxury cars in the ordinary course of business in any structure (company or sole trader), as well as those that sell a luxury car to an employee, an associate, or an employee of an associate as a one-off transaction.

Businesses and individuals who sell cars valued over a certain threshold (the luxury tax threshold) in the course of their business are subject to luxury car tax (LCT). This is a requirement if your business is registered or required to be registered for GST. LCT doesn’t just apply to instances where a dealer is selling a car to an individual or a business – it also applies in instances where a business sells or trades in a car that is a capital asset.

For the 2021–2022 financial year, the luxury car threshold is $79,659 for fuel-efficient vehicles and $69,152 for all other vehicles. This means that if your business buys a car with a GST-inclusive value above these thresholds, you are liable to pay LCT (except in certain circumstances).

If you’re the seller of a luxury car, whether or not it is within your usual course of business, you’re required to charge LCT to the recipient, reporting the associated LCT amount in your BAS and remitting the amount to the ATO by the due date for BAS payment. You cannot avoid LCT by selling a luxury car to an employee, an associate, or an employee of your associate for less than the market value, or by giving it away for no consideration. The LCT value of the car in that instance will always be the GST-inclusive market value.

The ATO is currently investigating arrangements where a chain of entities that progressively on-sell luxury cars have improperly obtained LCT refunds and evaded remitting LCT to the ATO. Usually, in this arrangement, one of the entities will claim a refund of LCT while creating a consequential liability to another entity in the supply chain. Following on from that, one or more of the participating entities down the chain, referred to as a “missing trader”, will not correctly report and pay their purported LCT liabilities to the ATO. These entities will then be liquidated to thwart ATO compliance or recovery action.

While the primary concern is the evasion of LCT, these arrangements also concern the ATO because they have the potential to result in luxury cars being sold without income tax and GST obligations being met. For example, luxury cars could be sold to end-users at more competitive prices, with generally higher profit margins, due to the intentional avoidance of tax obligations and false refund claims. This would in turn economically affect legitimate businesses that are meeting all their tax obligations.

Being aware of these potential illegal practices, the ATO is engaging with taxpayers to ensure that all parties have correctly met their LCT, GST and income tax obligations. It warns that it has sophisticated systems in place to identify high-risk LCT refunds, which will then be withheld pending adequate reviews. Further, in high-risk cases, the ATO will scrutinise contractual obligations that arise under each sale in the supply chain to ensure compliance. Transactions will not be viewed in isolation, and all sales of cars, including the ultimate sale to end-users, will be examined to ascertain the purpose of the entities involved in the arrangements.

Up and coming changes to super

Recently, a number of significant superannuation changes were proposed in Parliament as a part of the government’s plan to enhance super outcomes for Australians. If passed, the changes will allow individuals aged between 67 and 75 to make non-concessional contributions and salary sacrifice super contributions without meeting the work test. Other changes introduced in conjunction include lowering the age for downsizer contributions, increasing in the maximum releasable amount under the First Home Super Saver Scheme, and removing the minimum threshold for super guarantee.

Changes to work test and bring-forward rule

Under the current law, individuals aged between 67 and 75 either need to pass the “work test” or satisfy the work test exemption criteria if they want to make non-concessional and salary sacrifice contributions to their super. To pass the work test, an individual must work at least 40 hours during a consecutive 30-day period each income year. To satisfy the work test exemption criteria, an individual must have satisfied the work test in the income year preceding the year in which the contribution was made, have a total super balance of less than $300,000 at the end of the previous income year, and have not relied on the work test exemption in the previous financial year.

The recently proposed amendments would allow individuals aged between 67 and 75 to make non-concessional contributions and salary sacrifice super contributions without meeting the work test, subject to contribution caps. Following on from that, individuals under 75 years of age would also be able to access bring-forward non-concessional contributions in a particular financial year (provided eligibility conditions are met). The age limit to bring forward non-concessional contributions is currently 67.

Downsizer contributions age to be lowered

The current downsizer contributions measures allow individuals aged 65 or over to make a contribution into their super of up to $300,000 from the proceeds of selling their home. With the introduction of amending legislation, the government is seeking to reduce the age limit of the downsizer contributions to apply to those aged 60 or over. If passed, this change is expected to apply to downsizer contributions made on or after 1 July 2022, subject to other eligibility conditions being met.

Increase in maximum releasable amount for first home buyers

The First Home Super Saver Scheme was designed to help first home buyers save for a deposit by allowing them to make voluntary concessional and non-concessional contributions into super, and later withdraw those eligible contributions and associated earnings for purchasing a home. Currently, the maximum amount that can be released from super is $30,000. Under the proposed changes, the maximum amount would increase to $50,000. Note, however, that while the overall maximum amount would increase, the amount of voluntary contributions eligible to be released in any one financial year would not change from $15,000.

Removing minimum threshold for super guarantee

Currently, an employer does not have to pay super guarantee for an employee who earns less than $450 in a calendar month with that employer. The $450 threshold was originally introduced as a way to minimise the administrative burden on employers. However, with the technological advancement of single touch payroll (STP), the government no longer sees a need for the threshold, which is increasingly affecting young, lower-income, part-time and female workers, and has proposed removing it so that employers must pay super guarantee to all employees.

SMSF trustees: reminder to apply for director IDs

Directors of corporate trustees of self managed superannuation funds (SMSFs) should be aware that the director identification regime is now in force. Depending on when you became a director, the deadline for application is either November 2022 or within 28 days of the appointment. The application process itself is easy and can be done online through the new Australian Business Registry Services (ABRS). Once you receive it, your 15-digit identification number will be permanently linked to you even if you change companies, stop being a director, change your name or move interstate or overseas.

The director ID regime was implemented as a way to prevent the use of false or fraudulent director identities, make it easier for external administrators and regulators to trace directors’ relationships with companies over time, and identify and eliminate director involvement in unlawful activity, such as illegal phoenix activity.

Generally, a director ID starts with 036 and ends with an 11-digit number and one “check” digit for error detection. Each director will need to apply for their own ID, so if there are two or more directors for the corporate trustee of your SMSF, each director will need to apply separately. The process is entirely free, and the number that is assigned will be permanently linked to the individual.

Depending on when you became a director, the deadline for obtaining the director identification number will differ. Individuals that became directors of a corporate trustee before 31 October 2021 have until November 2022 to apply. Any individuals that are appointed to be a director of a corporate trustee between 1 November 2021 and 4 April 2022 will need to apply within 28 days of their appointment. After 4 April 2022, individuals seeking to be appointed to be directors of a corporate trustee will need to apply for a director ID before being appointed.

To apply for your director ID, you will need to first set up myGovID, which is different to myGov. The myGovID is an app that you need to download onto your smart device and confirm your identity in using standard documents (drivers licence, passport, etc). When your identity is authenticated, you’ll be able to log on to a range of government services, including the online director ID application with the ABRS.

To complete the director ID application, you will need to provide additional information such as your tax file number (TFN), residential address as held by the ATO, and/or details from two specified documents to verify your identity, such as: bank account details; ATO notice of assessment; super account details; a dividend statement; Centrelink payment summary; or PAYG payment summary.

Once you receive your director ID, you will need to pass it onto the record-holder of the corporate trustee, which may be the company secretary, another director, a contact person or an authorised agent of the company. If the corporate trustee changes or you become the director of another company, you will need to pass on this information to the new corporate trustee or the other company.

Going forward, you will also be able to log on to ABRS and update your details if required; however, if your personal details change, such as your name, role or address, you must still notify the corporate trustee within seven days. This is to enable relevant company officeholder(s) enough time to notify the Australian Securities and Investments Commission (ASIC) of the change, which typically needs to occur within 28 days to avoid late fees. Currently, director IDs are not searchable by the public; however, the Registrar (the ATO Commissioner) will be consulting the community about what details can and should be disclosed and searchable in the future.

ATO tax time support: COVID-19 and natural disasters

The ATO has a range of year-end tax time options to support taxpayers who have been affected by the COVID-19 pandemic and recent natural disasters.

Income statements can be accessed in ATO online services through myGov accounts from 14 July. The ATO also reminds those who may have lost, damaged or destroyed tax records due to natural disasters that some records can be accessed through their myGov account or their registered tax agent. For lost receipts, the ATO can accept “reasonable claims without evidence, so long as it’s not reasonably possible to access the original documents”. A justification may be required on how a claim is calculated.

The following provides a summary of tax treatment of different support schemes:

• JobKeeper – Payments received as an employee will be automatically included in the employee’s income statement as either salary and wages or as an allowance. However, sole traders who received JobKeeper payment on behalf of their business will need to include the payment as assessable income for the business.
• JobSeeker – Payments received will be automatically included in the tax return at the Government Payments and Allowances question from 14 July.
• Stand down payments – Employees receiving one-off or regular payments from their employer after being temporarily stood down due to COVID-19 should expect to see those payments automatically included in their income statement as part of their tax return.
• COVID-19 Disaster Payment for people affected by restrictions – The Australian Government (through Services Australia) COVID-19 Disaster Payment for people affected by restrictions is taxable. Taxpayers are advised to ensure they include this income when lodging their returns.
• Tax treatment of other assistance – The tax treatment of assistance payments can vary; the ATO website outlines how a range of disaster payments impact tax returns and includes guidance on COVID-19 payments, including the taxable pandemic leave disaster payment.
• Early access to superannuation – Early access to superannuation under the special arrangements due to COVID-19 is tax free and does not need to be declared in tax returns.

Assistant Tax Commissioner Tim Loh offered this piece of advice: “Even if you can’t pay, it’s still important to lodge on time. Once you lodge and have up-to-date records, [the ATO] can help you understand your tax position and find the best support for you.”

Source: www.ato.gov.au/Media-centre/Media-releases/ATO-here-to-help-those-hit-by-COVID-19-and-natural-disasters/;

www.ato.gov.au/general/dealing-with-disasters/assistance-payments/#Taxtreatmentofdisasterreliefpayments;

www.ato.gov.au/General/COVID-19/Government-grants-and-payments-during-COVID-19/.

Hardship priority processing of tax returns

It’s tax time again and if your business is experiencing financial difficulties due to the latest lockdowns, the ATO may be able to help by processing your tax return faster and expediting the release of any refund to you. To be eligible for priority processing, you’ll need to apply to the ATO and provide supporting documents (within four weeks of your submission) outlining your circumstances. “Financial difficulty” may include many situations such as disconnection of an essential service, pending legal action or repossession of a business vehicle.

According to the ATO, financial difficulty may occur in many situations, including but not limited to business closure, disconnection of an essential service, repossession of a business vehicle, pending legal action for unpaid debts, court orders, settlements and other necessities the business is responsible for.

As the circumstances of financial difficulty may vary, the supporting documents may be general (eg bank notices, overdraft calls, staff pay records, or eviction notices) or specific (eg disconnection notice for an essential service, repossession notice of a vehicle, notice of impending legal action, payment schedules or other legal documents).

Businesses can apply for ATO priority processing over the phone or through their tax professional after the lodgment of the tax return in question. Once the initial request for priority processing is received by the ATO, the applicant will be notified and contacted if more information is required. Processing will take more time for businesses that have lodged several years’ worth of income tax returns of amendments at the same time, and those that have unresolved tax debts.

Before lodging any priority processing request, the taxpayer should check the progress of their return through online services, the phone or their tax professional. If the return is in the final stages of processing, they may not need to lodge a priority processing request as the return will be finalised before the ATO has had an opportunity to consider the request.

Remember, priority processing of a business tax return doesn’t guarantee a refund. If the business has outstanding tax or other debts with Australian government agencies, the credit from a return may be used to pay down those debts.

For businesses that do not qualify for priority processing but are still experiencing hardship, there are various options to assist with cashflow, including adjusting GST registration and reporting, as well as varying PAYG instalments. If the business’s GST turnover is less than $75,000 they may be able to either cancel their GST registration or remain registered but report and pay GST annually or monthly. To vary PAYG instalments when business income is reduced, the business can lodge a variation on the next BAS or instalment notice and the varied amount will apply to the remaining instalments for the income year.

In addition, if business funds have been frozen or if the business owes the ATO under $100,000, it may be possible to pay the tax by instalments or the business may be eligible for a payment deferral. Remember, however, that the ATO doesn’t have the discretion to vary super contribution due dates or waive the super guarantee charge for late payments, so care needs to be taken to avoid penalties in this area.

Workplace giving versus salary sacrifice donations

Have your clients made donations either through workplace giving or salary sacrifice arrangements with their employers? If so, and they want to claim a deduction in their tax returns, it’s important for them to know that the tax treatment differs depending on which method they used to make the donation.

Essentially, workplace giving is a streamlined way for employees to regularly donate to charities and deductible gift recipients (DGRs). Usually a fixed portion of the employee’s salary is deducted from the employee’s pay each pay cycle and the employer forwards the donation on to the DGR. However, the amount of the employee’s gross salary remains the same and, depending on the employer’s payroll systems, the amount of tax paid by the employee each pay period may or may not be reduced to take into account the donation.

On the other hand, under a typical salary sacrificing donation arrangement, the employee agrees to have a portion of their salary donated to a DGR in return for the employer providing benefits of a similar value to the employee. The employee’s gross salary is reduced by the salary sacrificed amount and the amount of tax paid by the employee each pay period will be reduced; the employer makes the donation to the DGR.

If an employee has made a donation under workplace giving, they are able to claim a deduction in their tax return. This is regardless of whether or not the employer reduced the amount of tax paid each pay cycle to account for the amount of the donation. The employer will provide the employee with a letter or email stating the total amount donated to DGRs, and the financial year in which the donations were made.

Alternatively, the employer will provide the total amount of donations the employee made for the year in the employee’s payment summary, under the “Workplace giving” section.

Those who have made a donation to a DGR under a salary sacrifice arrangement, however, are not entitled to claim a deduction in their tax return, since it is the employer that is making the donation to the DGR – not the employee. Therefore, it is prudent for your clients to check whether they’ve donated under workplace giving or a salary sacrifice arrangement before claiming any deductions for donations to DGRs this year.

For taxpayers who have made donations outside the workplace, remember that for a donation to be deductible it must be made to a DGR and truly be a gift or donation (ie voluntarily transferring money or property without receiving or expecting to receive any material benefit or advantage in return) of $2 or more. Although, if you receive a token item for a donation (eg a lapel pin, wristband, sticker etc), you are still able to claim a deduction.

Receipts must be kept for donations made outside of workplace giving programs; however, if taxpayers have made donations of $2 or more to “bucket collections” conducted by an approved organisation they may be able to claim tax deductions for gifts up to $10 without a receipt. It should also be noted that many crowdfunding campaigns and sites are not run by DGRs, and subsequently any donations made to those causes should be carefully examined – it’s likely they will not be deductible.

Employers beware: increase in super guarantee

From 1 July 2021, the rate of super guarantee increased from 9.5% to 10%. Businesses using manual payroll processes should be careful that this change doesn’t lead to unintended underpayment of super, which may attract penalties. The rate employers should use to calculate super contributions depends on the date that they are paying their employees – it doesn’t matter if the work was performed in a different quarter. The new rate of 10% is the minimum percentage now required by law, but employers may pay super at a higher rate under an award or agreement.

Depending on how a business’s employment contracts are structured (eg a package, or base pay plus superannuation), the new extra 0.5% may either come from the employee’s existing gross pay or be extra payment on top of their salary.

Most payroll and accounting systems will have incorporated the increase in their super rate, but it’s always good to check. If your clients are still using a manual process to pay their employees, they will need to work out how much super to pay under the new rate. The process is fairly simple: they will just need to multiply an employee’s ordinary time earnings based on salary and wages paid in the quarter by 10% (or a higher rate if one applies under an award or agreement).

Remember, the rate used to calculate super contributions depends on the quarter that in which the business is paying its employees in. It does not matter if the work is performed in a different quarter. The 10% super guarantee applies to all super payments made after 1 July 2021.

Example

Trevor is an employee of Ian and is paid fortnightly. For the pay period ending 27 June 2021, Trevor’s ordinary time earnings for the fortnight are $2,000. Ian pays Trevor on 1 July 2021. The minimum super contribution for Trevor for the pay period ending 27 June 2021 is $200 (ie $2,000 × 10%). However, if Ian had made a payment on 27 June 2021, the minimum super contribution would have been $190 (ie $2,000 × 9.5%).

Now imagine that Trevor’s fortnightly pay period spans from 21 June 2021 to 5 July 2021, and Ian makes a payroll payment on 9 July 2021. Because the payment is made after 1 July 2021, the minimum super contribution Ian has to make on behalf of Trevor is still $200 (ie $2,000 × 10%); it does not matter that some of the work was performed in a different quarter.

Employers may not necessarily have to pay their employees’ super every pay cycle, but payment needs to be made at least four times a year (ie at least once each quarter). For the 1 July to 30 September quarter, super guarantee contributions are due by 28 October. Employers that miss this payment due date may be subject to the super guarantee charge and other penalties.

It should also be noted that some super funds, employment awards and contracts require employers to pay super more regularly than quarterly; therefore, various contractual obligations should be checked before moving to a quarterly remittance cycle.

This latest increase to 10% is by no means the last time the super guarantee rate will change over the next few years. From 1 July 2022 to 30 June 2023 (ie next financial year) the rate will increase to 10.5%, followed by another 0.5% point increase to 11% in the 2023–2024 financial year. So, employers will need to be on their toes to make sure the right amount of super guarantee is paid for the next few years.

COVID-19 lockdown support: NSW, Vic and SA

If your business or employment income has been affected by recent COVID-19 related lockdowns in New South Wales, Victoria and South Australia, financial help is available from both the state and Federal governments. Depending on the length of the lockdown, businesses may be eligible to receive a co-funded small and medium business support payment, as well as various cash grants.

Federal support

Businesses

For small and medium businesses, depending on the length of the lockdown, the Federal government will fund up to 50% small and medium business support payments to be administered by the states. For example, under the scheme, eligible entities in NSW will receive 40% of their NSW payroll payments – at a minimum of $1,500 and a maximum of $10,000 per week – if their turnover decreases by 30% from an equivalent two-week period in 2019.

Businesses will need to have an annual turnover of between $75,000 and $50 million. Non-employing businesses (eg sole traders) will also be eligible; however, the maximum payment will be set at $1,000 per week. In order to receive the payment, businesses will be required to maintain their full-time, part-time and long term casual staffing levels as at 13 July 2021.

The Federal government will also seek to make various state business grants tax exempt and provide support for taxpayers through the ATO with reduced payment plans, waiving interest charges on late payments and varying instalments on request. For individuals, the COVID-19 disaster payment of up to $600 will be available in any state or territory where a lockdown has been imposed.

Individuals

Where lockdowns or movement restrictions are in place or local government areas have been declared “hotspots”, the Federal government’s COVID-19 Disaster Payment is also activated. Individuals are eligible this payment if they have lost between eight and 19 hours of work (for a payment of $375), or 20 or more hours of work (for a payment of $600) because of restrictions under a state public health order.

The payments will be made in arrears and anyone affected can apply through myGov. More information about these payments and how to claim is available on the Services Australia website at www.servicesaustralia.gov.au/individuals/services/centrelink/covid-19-disaster-payment.

Source: www.pm.gov.au/media/nsw-covid-19-support-package-0;

www.servicesaustralia.gov.au/individuals/services/centrelink/covid-19-disaster-payment;

https://ministers.treasury.gov.au/ministers/josh-frydenberg-2018/media-releases/nsw-covid-19-support-package;

www.pm.gov.au/media/childcare-gap-fee-waiver-nsw-families-covid-affected-areas;

www.pm.gov.au/media/press-conference-kirribilli-nsw-6; www.pm.gov.au/media/vic-covid-19-support-package.

New South Wales

Eligible businesses with annual wages up to $10 million will be able to claim state government grants of between $7,500 and $15,000 under the business grants program. Smaller and micro businesses with turnover of between $30,000 and $75,000 that experience a decline in turnover of 30% will be eligible for a $1,500 payment per fortnight of restrictions.

Payroll tax waivers of 25% will be available for businesses that have Australian wages of between $1.2 million and $10 million and have experienced a 30% decline in turnover. In addition, payroll tax deferrals and interest free payment plans will be available.

Commercial, retail and residential landlords who provide rental relief to financially distressed tenants will be able to claim land tax relief equal to the value of rent deductions up to a maximum of 100% of the 2021 land tax liability. Residential landlords that are not liable for land tax may be able to claim a capped grant of up to $1,500 where they reduce rent for tenants.

Just as support for landlords has been ramped up, the NSW government will also be protecting tenants with a short-term eviction moratorium for rental arrears where a residential tenant suffers a loss of income of 25% due to COVID-19 and meets a range of other criteria. There will also be no recovery of security bonds, lockouts or evictions of impacted retail/commercial tenants prior to mediation.

Source: www.nsw.gov.au/media-releases/accelerated-2021-covid-19-business-support-grant-open;

www.nsw.gov.au/covid-19/businesses-sole-traders-and-small-not-for-profits;

www.smallbusiness.nsw.gov.au/resources/summary-covid-19-support-measures-micro-and-small-business;

www.service.nsw.gov.au/transaction/2021-covid-19-business-grant;

www.nsw.gov.au/media-releases/payroll-tax-reductions-and-deferrals-to-support-businesses; www.revenue.nsw.gov.au/.

Victoria

Businesses in Victoria will be provided with cash grants from the state government. These payments will be automatically made to eligible businesses and sole traders to minimise delays. The state government estimates that up to 90,000 business that previously received assistance payments in relation to previous lockdowns will receive the new cash grant of $3,000 for licensed hospitality venues and $2,000 for other businesses.

Source: www.premier.vic.gov.au/cash-support-victorian-businesses-during-lockdown.

South Australia

Small and medium-sized businesses that suffer a significant loss of income or were forced to close as a result of South Australia’s seven-day lockdown are being offered a $3,000 emergency cash grant as part of a $100 million business support package. The package also includes a new $1,000 cash grant for eligible small businesses that don’t employ staff (eg non-employing sole traders).

Modelled on similar schemes in Victoria, NSW and WA, the SA grants will apply to businesses with a payroll of less than $10 million, with an annual turnover of $75,000 or more (in 2020–2021 or 2019–2020) and whose turnover reduced by at least 30% over the seven days from 20 July 2021 as a result of the lockdown.

In addition, the SA Government said it will provide fully-funded income support payments of up to $600 per week for eligible workers in regional SA who live or work outside of the Commonwealth-declared “hotspot” local government areas, and are therefore not entitled to the Federal $375 or $600 per week COVID-19 Disaster Payment.

Source: www.pm.gov.au/media/commonwealth-income-support-way-sa-hotspots; www.premier.sa.gov.au/news/media-releases/news/cash-grants-lifeline-for-sa-small-businesses-and-income-support-payments-for-regional-workers.

Temporary COVID Disaster Payment now available

The Federal Government has announced a temporary COVID Disaster Payment to assist workers who reside or work in a Commonwealth declared hotspot, who are unable to attend work and earn an income as a result of state-imposed health restrictions that last for longer than one week.

The payment, available for Australian citizens, permanent residents and eligible working visa holders, is up to $500 per week for recipients who lose 20 hours or more of work, and $325 per week those who lose under 20 hours of work.

The payment is available in respect of the second and any subsequent weeks of restrictions to workers who:

• have liquid assets of no more than $10,000;
• have exhausted any leave entitlements (other than annual leave) or other special pandemic leave; and
• are not already receiving income support payments, business support payments, or the Pandemic Leave Disaster Payment.

Access to the payment is available through Services Australia from 8 June 2021.

Source: https://ministers.treasury.gov.au/ministers/josh-frydenberg-2018/media-releases/temporary-australian-government-assistance-workers.

Private health insurance rebates frozen

The Federal Government has once again quietly sought to freeze the private health insurance income thresholds for the private health insurance incentive, this time for another two years, with indexation of the thresholds to start up again from 1 July 2023. Most people with private health insurance takes the private health insurance incentive in the form of reduced premiums, although it can also be taken as a tax offset.

The income thresholds for private health insurance were originally meant to be indexed annually; however, since the government implemented the freezing of indexation, the income thresholds have remained at 2014–2015 levels for the various tiers. While the rebate percentages were adjusted annually on 1 April, the rebate percentage for the current year have remained the same as in the 2019–2020 year.

For individuals and families with private health insurance, this means that the rebate adjustment factor will remain the same as in the 2019–2020 income year, translating into a real-life cut in the rebated amount. This will be the case until the government completes its review into the MLS Medicare Levy Surcharge (MLS) Policy Settings.

According to the Commonwealth Ombudsman, private health insurance offerings for basic (Bronze) hospital cover plus extras for two adults and two young children range from $300 to $600 per month for the current year. Going with an average figure of $450 per month, the annual cost of the insurance would equate to roughly $5,400. Assuming the adults are under 65 and earning less than $180,000 as a family, the total rebate on the yearly premium would be: $5,400 × 25.059% = $1,354.

If the family applies the rebate in the form of reduced premiums for their cover, it would mean that instead of paying $450 per month they would pay $337 per month. However, because indexation is now frozen until 1 July 2023, if private health insurance prices increase next year in line with previous average increases, the same family earning the same amount of money will end up paying more for their private health insurance, because the rebate percentage will stay the same.

The average 2021 price increase for health insurance premiums was 2.74%, which was the lowest increase since 2001. However, most large insurers increased their prices above the average rate, with the maximum increase by a fund listed as 5.47%. According to some figures, health insurance premiums have increased by 57% in the last decade, while the consumer price index (CPI, or inflation) has only grown by 20%.

Extending from our example, if the average price of $450 per month increases by 5% for 2022, the family will be paying $22 extra per month before the rebate is applied. The total annual premium would be $5,670 and the total rebate on the yearly premium would be: $5,670 × 25.059% = $1,420.

Again, if the hypothetical family applies the rebate in the form of reduced premiums, they will end up paying $354 per month in 2022, which equates to $17 a month extra for the same policy with the same benefits, while they are earning substantially the same amount due to stagnant wages growth. Remember, this simple calculation doesn’t take in the fact of singles or families moving between tiers which would reduce their rebate even more.

Cryptocurrency trading is subject to tax: new ATO data-matching program

According to ATO estimates, over 600,000 Australian taxpayers have invested in crypto-assets in recent years. The ATO has recently issued a reminder that although many people may believe that gains made through cryptocurrency trading are tax-free, or only taxable when the holdings are cashed back into “real” Australian dollars, in fact this is not the case – capital gains tax (CGT) does apply where gains or losses are in the form of crypto-assets.

“We are alarmed that some taxpayers think that the anonymity of cryptocurrencies provides a licence to ignore their tax obligations”, ATO Assistant Commissioner Tim Loh has said. Mr Loh added that while it may appear that cryptocurrencies operate in an anonymous digital world, the ATO does closely track where these assets interact with the “real” financial world through data from banks, financial institutions and cryptocurrency online exchanges, following the money back to the taxpayer.

This year the ATO will be writing to around 100,000 people with cryptocurrency assets explaining their tax obligations and urging them to review their previously lodged returns. It also expects to prompt 300,000 taxpayers to report their cryptocurrency capital gains or losses as they lodge their 2021 tax returns.

“Gains from cryptocurrency are similar to gains from other investments, such as shares”, Mr Loh explained. “Generally, as an investor, if you buy, sell, swap for fiat currency, or exchange one cryptocurrency for another, it will be subject to capital gains tax and must be reported.”

“The best tip to nail your cryptocurrency gains and losses is to keep accurate records, including dates of transactions, the value in Australian dollars at the time of the transactions, what the transactions were for, and who the other party was, even if it’s just their wallet address”, Mr Loh said.

Alongside these communications to taxpayers, the ATO is beginning a new data-matching program focused on crypto-asset transactions. It will acquire account identification and transaction data from cryptocurrency designated service providers for the 2021 financial year through to the 2023 financial year inclusively. The ATO estimates that the records relating to approximately 400,000 to 600,000 individuals will be obtained each financial year.

The data items will include:

• client identification details (names, addresses, date of birth, phone numbers, social media accounts and email addresses); and
• transaction details (bank account details, wallet addresses, transaction dates, transaction time, transaction type, deposits, withdrawals, transaction quantities and coin type).

The ATO says that the objectives of the program are to:

• promote voluntary compliance by communicating how the ATO uses external data with its own “to help encourage taxpayers to comply with their tax and superannuation obligations”;
• identify and educate those individuals and businesses that may be failing to meet their registration and/or lodgment obligations and “assist them to comply”;
• gain insights from the data that may help to develop and implement treatment strategies to improve voluntary compliance (including educational or compliance activities, as appropriate);
• gain insights from the data to increase the ATO’s understanding of the behaviours and compliance profiles of individuals and businesses that have bought, sold or accepted payment via cryptocurrency;
• help ensure that individuals and businesses that trade or accept cryptocurrency as payment are fulfilling their taxation lodgment, reporting and payment obligations; and
• help ensure that individuals and businesses are fulfilling their tax and superannuation reporting obligations.

Source: www.ato.gov.au/Media-centre/Media-releases/Cryptocurrency-under-the-microscope-this-tax-time/;

www.legislation.gov.au/Details/C2021G00417.

ATO compliance: economic stimulus measures

Businesses that have accessed government economic stimulus measures need to take extra care this tax time. The ATO has announced that it will increase its scrutiny, conducting compliance activity on various economic stimulus measures introduced to help businesses recover from the effects of COVID-19. These stimulus measures include loss carry-back, temporary full expensing and accelerated depreciation. While the ATO said it will continue to support businesses, most of whom are doing the right thing, it is looking at behaviour or development of schemes designed to deliberately exploit various stimulus measures. All taxpayers that have used the schemes are encouraged to review their claims to ensure they are eligible, and that the amounts claimed are correct.

The loss carry-back measure allows eligible corporate entities to claim a refundable tax offset in their 2020–2021 and 2021–2022 company tax returns. In essence, companies get to “carry back” losses to earlier years in which there were income tax liabilities, which may result in a cash refund or a reduced tax liability.

The temporary full expensing measure allows eligible businesses to immediately deduct the business portion of the cost of eligible new depreciating assets or improvements held and ready for use between 6 October 2020 and 30 June 2022. Eligible businesses also have access to the accelerated depreciation measure for the 2019–2020 and 2020–2021 income years, in which the cost of new depreciating assets can be deducted at an accelerated rate.

Specifically, in relation to loss carry-back, the ATO will looking for businesses that are deliberately inflating their deductions or omitting some of their income to generate the appearance of losses. It will also look for signs of businesses entering into contrived schemes to obtain a benefit of the loss carry-back tax offset, such as shifting or creating losses through non-arm’s length dealings or shifting franking credits to a corporate entity (either directly or indirectly).

In relation to temporary full expensing and/or accelerated depreciation, the ATO notes the following behaviours which will attract its attention:

• entering into contrived schemes to obtain a benefit of a temporary full expensing deduction, including schemes involving:
• manipulation of aggregated turnover;
• non-commercial transactions involving the transfer of an asset between related entities;
• artificially inflating the cost of assets (including inappropriate valuations) through non-arm’s length dealings;
• claiming deductions for assets acquired solely for a non-business purpose or failing to take into account any portion of non-business use;
• deliberately misclassifying or reclassifying excluded assets (eg reclassifying capital works and buildings as eligible assets under temporary full expensing or Div 43 capital works and buildings as eligible assets under accelerated depreciation);
• deliberately inflating the amount of accelerated depreciation deduction by applying the incorrect adjustable value or effective life;
• failing to take into account the car limit when calculating the deduction; and
• lacking evidence to substantiate the claim (including the cost of assets) such as invoices, contracts, supplier agreements or independent valuations.

The ATO notes that it will review claims for loss-carry back, temporary full expensing and accelerated depreciation as part of its tax time compliance activities as well as actively identifying tax schemes and arrangements seeking to exploit those schemes. Where cases of concerning or fraudulent behaviours are identified, it will actively pursue the claims including imposing financial penalties, prosecution and imprisonment for the most serious of cases.

Personal use assets and collectables in SMSFs

Contrary to some popular beliefs, a self managed superannuation fund (SMSF) can invest in collectables such as artworks, jewellery and wine, as well as personal use assets such as boats, classic cars and other vehicles. However, investment in these assets must occur in keeping very strict and specific rules in order to qualify, and thus care should be taken to avoid breaches of super rules in relation to owning collectables and personal use assets in SMSFs.

To start with, collectables and personal-use assets encompass a wide range of assets, including:

• artworks (paintings, sculptures, drawings, engravings, photographs etc);
• jewellery;
• antiques;
• artefacts;
• coins, medallions or bank notes in certain circumstances (eg coins, bullion coins and bank notes are considered collectables if their value exceeds their face value);
• postage stamps or first-day covers;
• rare folios, manuscripts or books;
• memorabilia;
• wine/spirits etc;
• motor vehicles and motorcycles;
• recreational boats; and
• memberships of sporting or social clubs.

The SMSF is allowed to invest in any of these collectable or personal use assets, provided such items are acquired for genuine retirement purposes and not to provide any present day benefit to either the members of the SMSF or related parties. In addition, the investment must also satisfy the following criteria:

• it must comply with all other relevant investment restrictions, including the sole purpose test;
• the decision on where the item is stored must be documented and a written record kept;
• the item(s) must be insured in the fund’s name within seven days of the fund acquiring it;
• where an item is subsequently transferred to a related party, it must be at the market value as determined by a qualified, independent valuer; and
• the items must be unencumbered.

First and foremost, these rules mean that whatever collectable or personal use asset is purchased by the SMSF, it cannot be used by members or related parties in any capacity. To show how far this rule goes, the ATO cites an example of a classic car: if it is owned by the SMSF as an investment, it cannot be driven by a member or any related party for any reason. This holds true even if the only reason for driving the car is to maintain the car or to perform restoration work.

These rules also mean that any collectable or personal use asset owned by the SMSF cannot be stored on or in the private residence of any member or related party (this includes all parts of a private dwelling, as well as the land on which the private residence is situated and all other buildings on that land, such as garages or sheds). However, the asset can be stored – but not displayed – in premises owned by a related party that are not their private residence.

For example, an artwork that is an SMSF investment cannot be displayed in the business premises of a related party where it would be visible to clients and employees, but it could be stored in a cupboard or another similar storage area. Additionally, the artwork (or other collectable/personal use asset) can be leased to unrelated parties on arm’s length terms.

The ability to obtain insurance must also be considered where an SMSF is going to invest in collectables or personal use assets. It is a requirement that the items are insured within seven days, under either separate policies or one collective policy. The owner and beneficiary of the policy must be the SMSF itself. If the SMSF has already made the investment but is unable to obtain insurance, the ATO will need to be notified.