The coronavirus stimulus package: Phase one

Daniel Wilkie   |   18 Mar 2020   |   3 min read

On 12 March 2020 the government announced the first phase of an economic stimulus package in response to the impact of the coronavirus (COVID-19) pandemic.

Welfare Recipients:

Eligible welfare recipients will receive a once off economic support payment of $750. This includes people receiving family tax benefits and anyone with a Veteran gold card. This will be paid after 31 March 2020 (pending legislation approval).

This is a non-taxable, non-assessable lump sum paid. To ensure recipients can spend the money, it will not be withheld to cover existing debts such as child support or Centrelink debts.

Employers:

Employers with less than $50 million turnover will receive between $2,000 and $25,000 to alleviate the cashflow burden of paying employees.

The benefit will be calculated at 50% of the PAYGW remitted in your March and June activity statements (as well as April and May if applicable). If you have less than $4,000 in PAYGW, then you will simply receive the minimum $2,000 payment after lodging your March Activity Statement. If your total PAYGW exceeds $50,000 over this period, then your benefit will be capped at the maximum payment of $25,000.

Instant Asset Write Off

To encourage businesses to invest in asset purchases, until 30 June 2020 all businesses with a turnover of up to $500 million will be able to instantly write off any assets costing up to $150,000. These write-offs will be claimed as tax deductions in your 2020 tax return.

For the 2021 tax year businesses with a turnover of up to $500 million will be able to immediately deduct 50% of the cost of new assets.

Eligible assets include any new asset that is installed to be used by your business and any second hand asset that you purchase and install to be used for the first time by your business. Normal deductibility rules apply, meaning that if the asset would otherwise have been depreciable, you can now claim an instant write off deduction in your tax return. If the asset is used for a mixture of business and personal use then only the business portion can be claimed as an immediate deduction.

For example:

Say you purchase a ute that is exempt from the car limit (because it qualifies as a commercial vehicle that is not designed for the principal purpose of carrying passengers), for $60,000. It is to be used exclusively for your business. In this situation you would be able to claim the entire $60,000 cost in your 2020 income tax return.

However, if you purchased a motor vehicle for $60,000 that is to be used exclusively for your business then you would still be limited by the car limits for depreciation. For the 2020 financial year, the maximum you can claim for a fuel-efficient vehicle is $57,581.00. If the car was used partially for work purposes and partially for business purposes then you would further be limited to only claiming the work related percentage.

For further details see the government’s fact sheet.

Further Assistance:

Additional support measures include:

  • Wage subsidies for employers hiring apprentices or trainees
  • Unspecified funds to support the regions and industries most impacted by the coronavirus (to be determined).
  • Fee waivers for significantly impacted industries such as the tourism industry.

If you are having trouble paying ATO debts you can contact them for debt deferrals, extensions and repayment arrangements. If you need help, please give us a call.

Stay Tuned:

The government is set to monitor the situation and deliberate on further decisions this week. This could include the next phase of a stimulus package.

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Family Trusts

Daniel Wilkie   |   20 Feb 2020   |   3 min read

On 17 February 2020 the Australian Financial Review ran an article titled ‘Fresh scrutiny of trust payouts to beneficiaries’. 

For clients who may have seen the article, we wanted to further explain the issues, so that clients with family trusts are not unnecessarily alarmed.

The essence of the article, is that if family trusts are used to distribute income (or capital gains) to children who are over 18 (or other low income beneficiaries), then the ATO may look to apply an anti-avoidance provision (known as Section 100A).

This can occur in situations where the beneficiary reimburses the trust or other beneficiaries (for example if a child reimburses a parent) in a way which suggests that they were never the intended beneficiary.

We have set out below an example as a discussion point.

Example

The ‘Magic Family Trust’ derives income of $200,000 in a given tax year.

Mr and Mrs Johnstone as the directors of the Trustee company – decide to distribute $130,000 to Mrs Johnstone and $70,000 to Earvin Johnstone Junior who is now 20 years of age. 

On the $70,000 distributed to him Earvin pays significantly less tax than Mrs Johnstone would have paid, because Earvin is still studying and does not earn an income.

On the trust distribution Earvin pays $15,697 of tax whereas Mrs Johnstone would have paid approximately $27,500 on that additional $70,000, had the distribution been made to her.

Discussions between Mrs Johnstone and Earvin lead to a transfer of funds from Earvin’s bank account to Mrs Johnstone on the basis that it is ‘family income’ and Mrs Johnstone will spend or invest those funds as she decides.

If this scenario was reviewed by the ATO, they may seek to apply Section 100A to the affairs of the Johnstone’s. Although there is effectively an exception for ‘ordinary family dealings’ it is not clear whether a court would agree that the arrangement above would be considered as such.

In our example it would be necessary to determine what Mrs Johnstone did with the money and if the funds were effectively used for Earvin’s benefit. For example the AFR article says that “in some cases, senior external lawyers and barristers have been engaged by the ATO to review spending on household costs, family holidays, cars and a range of other living expenses.’ 

However if the funds were clearly used for something which did not benefit Earvin then in our view Section 100A would be likely to apply.

Section 100A would have the effect of treating Earvin as never being entitled to the income. It means that the Magic Family Trust could potentially be assessed to pay tax at 47% on the $70,000 distributed to Earvin, excluding penalties (which would be applied).

That would increase the tax to $32,900 excluding penalties, compared to the $15,697 that Earvin would have originally paid.

ATO Ruling pending

The Australian Financial Review article also reports that the ATO is developing a public ruling which will discuss interpretational issues associated with Section 100A.

It is hoped that the public ruling will outline the ATO’s views on the ‘ordinary family dealing’ exception, so that taxpayers can have certainty about what type of arrangements will be acceptable to the ATO when it comes to distributing trust income.

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What CST clients need to know about the Budget announcements

Daniel Wilkie   |   3 Apr 2019   |   3 min read

The big tax announcement in this week’s budget centred around:

  • Further personal income tax cuts;
  • Increased asset write offs for small business;
  • Increased funding for the ATO to tackle tax avoidance and evasion.

Updates to previous announcements included:

  •  A delay in changes to Division 7A which deals with loans from private companies to shareholders;
  •  No mention of the Proposed Removal of CGT Main Residence Exemption for non-residents (including Australian Expatriates).

Personal Income Tax Cuts

What is changing?

The government will be increasing the Low and Middle Income Tax Offsets (LMITO). Under the changes, the reduction in tax provided by LMITO will increase from a maximum amount of $530 to $1,080 per annum and the base amount will increase from $200 to $255 per annum for the 2018-19, 2019-20, 2020-21 and 2021-22 income years.

The Government will also progressively reduce the number of income tax brackets to 3 by 2024-2025 by which time there would only be 3 personal income tax rates – 19%, 30% and 45% (abolishing the 37% bracket).

What does this mean?

Low to medium income earners (those earning less than $125,333) will pay less tax when the LMITO offset is applied.

The objective of the tax bracket changes is to have 95% of Australia’s population paying no more than 30% on income tax by 2024-2025.

Increased Asset Write offs for small business

What is changing?

The instant asset write-off threshold for businesses with an aggregated turnover of less than $10m will be increased to $30,000 for eligible assets that are first used, or installed ready for use, from 7.30 pm (AEDT) on 2 April 2019 to 30 June 2020.

What does this mean?

Small businesses are able to completely write-off assets worth up to $30,000 in the financial year that they started using them rather than depreciating them provided the expenditure is incurred after 2 April 2019 and before 30 June 2020.

ATO to receive $1 Billion of funding to tackle tax avoidance and evasion

What is changing?

The Government will provide $1.0bn over 4 years from 2019-20 to the ATO to extend the operation of the Tax Avoidance Taskforce and to expand the Taskforce’s programs.

What does this mean?

The Taskforce will undertake compliance activities not only targeting multinationals and large public companies, but also private groups, trusts and high wealth individuals.

Delay in changes to Division 7A (Loans from private companies to shareholders)

The government has been undertaking consultation in relation to changes that it wishes to introduce to Division 7A which would include, among other things, eliminating the possibility of 25 Year Division 7A loans.

The Government issued a Consultation Paper in October 2018 seeking views on the proposed implementation approach for the amendments to Division 7A of the ITAA 1936.

The Government said it received valuable feedback which highlighted that Division 7A is a complex area and changes being considered in the Consultation Paper warrant further consideration.

The Government has agreed to delay the start date for proposed changes by 12 months to allow additional time to further consult with stakeholders and to refine the Government’s approach, to ensure appropriate transitional arrangements so taxpayers are not unfairly prejudiced.

Proposed Removal of CGT Main Residence Exemption for non-residents (including Australian Expatriates)

There was no mention in the Budget of the Government’s intention in relation to the widely criticised Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 2) Bill 2018.

Although there is no official comment, we do not expect that the Bill will proceed in its current form although depending on the outcome of the election, it may be re-introduced in a modified form. The Bill still has major and well documented shortcomings as we indicated in a previous article.

Author: Matthew Marcarian

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Are you a temporary resident for tax purposes?

Daniel Wilkie   |   27 Jan 2018   |   3 min read

Australia has a reputation as being a high taxing country. Most people are aware that if they are a resident of Australia they are taxable on all their income – whether from sources in or outside Australia.That is, Australia requires tax residents to declare income and capital gains from sources worldwide, regardless of whether the income is remitted to Australia.

However relatively few people are aware that Australia also has a generous concession for expats on their overseas assets. This is known as the ‘temporary resident exemption’ – which was introduced by the Australian government more than a decade ago.

New Zealand citizens who arrived in Australia after 26 February 2001 can also usually qualify under these rules which can give extremely favourable outcomes to New Zealand citizens with overseas assets.

If you are an expat and have the status of a temporary resident for migration purposes (i.e you hold a temporary visa, such as a 457 Visa) then you will most likely also be a temporary resident for income tax purposes. This applies unless your spouse is an Australian citizen or Permanent Resident, in which case you will not be able to benefit from the exemptions.

If you are a temporary resident for tax purposes in Australia then you are not required to declare foreign investment income such as foreign dividends, trust distributions or foreign bank interest, even if you bring this income into Australia. It is also the case that income that would otherwise be taxable under Australia’s controlled foreign company rules is also disregarded if a person is a temporary resident. Generous capital gains tax exemptions also apply to assets which are not Australian real property (i.e real estate) or interests in Australian real property.

These concessions mean that temporary residents are able to live and work in Australia, but often only pay tax on income from employment, while they can continue to hold significant foreign investments. The exception relates to employment related income which may be derived from foreign sources by a temporary resident living in Australia.

We are often contacted by people who wish to clarify their status under the temporary resident rules. Once people understand that they are temporary residents then many of their concerns about Australia’s worldwide approach to taxation tend to drop away.

However, temporary residents who are considering becoming Permanent Residents in Australia still need to be aware of how drastically their tax situation can change if they become Permanent Resident. This is because if you become a Permanent Resident you would be taxable under the normal rules on your worldwide income. We encourage global expats with significant overseas assets to seek tax advice as soon as they determine that they wish to apply for Permanent Residency in Australia.

If you are considering applying for Permanent Residency in Australia and have significant overseas assets our specialist team would welcome the opportunity to assist you with detailed tax advice so that you fully aware of the tax implications. CST’s Strategic Tax Review is an appropriate service for clients in this situation. If you are interested in seeking advice from us please contact us.

CST’s tax advisors have experience with advising high net worth global expatriates arriving in Australia from all parts of the world.

Our specialist integrated Australia/US advisory capabilities can also make a real difference for US expatriates living in Australia who have to lodge tax returns in Australia and the United States.

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Land tax and stamp duty surcharges – effect on Australian family trusts

Daniel Wilkie   |   19 Dec 2017   |   2 min read

There have been considerable changes recently in Australia’s approach to levying tax on foreign nationals who own Australian real estate. In particular, various state governments have introduced land tax and stamp duty surcharges for foreigners who own Australian residential land.

The purpose of this blog post is to provide general information as to the issues of how family trusts are treated.

Generally, the issue with trusts is that it needs to be determined whether a trust would be treated as foreign trust for land tax and stamp duty purposes.

If your family trust is deemed to be foreign trust, then you will be required to pay land tax surcharges if your family trust owns land in New South Wales, Victoria or Queensland.

Whether a trust is a foreign trust

The rules that determine whether a discretionary trust is considered a foreign trust for duty and land tax purposes differs from state to state. The appropriate rules to apply will depend on the location of the property of the trust (i.e. if the trust buys property in NSW it will be subject to the NSW definition).

Essentially issues will arise in New South Wales if your Trust has any potential beneficiary who is not an Australian citizen or who is not permanently residing in Australia. Note that the question of whether a foreign person has in fact benefited is not relevant.

The law in Queensland and Victoria is less onerous because surcharges will generally only apply in those states if any of the default beneficiaries (i.e name beneficiaries) are foreigners.

Suggestion action

We recommend that you consider the position of your trust and consider who the beneficiaries of your trusts may need to be moving forward.

If you do not intend to benefit foreign persons, then your trust deed may be able to be amended to avoid future land tax and stamp duty surcharges being applied.

For trusts that own residential land in NSW we also recommend that you read this link  so that you are aware of the approach that the New South Wales Office of State Revenue is taking in relation to this issue.

If you have any questions, please do not hesitate to contact us.

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Daniel Wilkie   |   21 May 2017   |   5 min read

What are the tax consequences of arriving in Australia and becoming tax resident?

From the date of arrival into Australia, you will generally be regarded as a tax resident of Australia and be required to declare income from worldwide sources from this day forth. Where you are classified as a temporary resident, only Australian sourced income will be taxable in Australia. In the first year, your tax-free threshold will also be pro-rated based on the number of months you will be a resident of Australia for tax. All of your assets will be deemed to have been acquired for their market value as at the date of your arrival for capital gains tax purposes. Your foreign income may also be subject to income tax depending on the movement of the exchange from the date of arrival to the date of actual conversion

What is the minimum time I can remain in Australia without being tax resident?

Australia has a 183-day rule with regards to determining whether you are a tax resident of Australia. However, there are also issues associated with one’s domicile which should also be considered.

Does Australia tax its residents on a world wide or territorial basis?

Australian tax residents are subject to income tax on their worldwide income. Territorial tax only applies if you are classified as a temporary resident of Australia for tax purposes.

Is foreign income taxable in Australia e.g. foreign rental income, foreign interest income and foreign dividend income?

As an Australian tax resident you will be taxable on foreign income derived during the year.

Does Australia tax income on a remittance basis?

No – Australia taxes foreign income as it accrues regardless of whether the income is remitted to Australia.

Does Australia have a sales tax or VAT tax on purchases?

Australia has a consumption tax called the Goods and Services Tax (GST). The current rate of GST is 10%.

Does Australia have a capital gains tax that taxes me when I sell foreign assets?

Yes – Capital gains tax applies in Australia on foreign assets for any capital growth arising from the date of commencement as an Australian tax resident to the date of disposal.

Does Australia have an estate tax or death tax?

No – Australian does not currently have an estate or death tax.

What is the top tax rate in Australia?

The top marginal tax rate for individuals in Australia is 45% with an additional 2% Medicare Levy and 2% Temporary Budget Repair Levy. This top rate applies on taxable incomes greater than $180,000.

Does the tax rate vary for different types of income and if so what are the rates?

The income tax rate applies to all forms of income , however there may be rebates which apply which will reduce the tax payable.

What are the common tax deductions available in Australia?

You may claim a deduction for any payments made in relation to the generation of income. Common deductions associated to employment income include out-of-pocket expenses such as:

  • Motor vehicles
  • Communications – cell phone, internet
  • Travel
  • Uniforms
  • Self-education

Does Australia require joint tax returns to be filed for me and my spouse or are separate tax returns required?

In Australia each taxpayer must file a personal return. However the joint incomes will be considered in determining eligibility to certain rebates.

If I have a foreign company or foreign trust before I arrived in Australia is the income of that company or trust taxable?

In Australia, the Controlled Foreign Company (CFC) and Transferor Trust rules will apply to attribute income to you personally if you are considered to control the assets of a foreign company or trust.

Do children under 18 pay a higher rate of tax on certain types of income?

Yes – Children who are not working or regarded as an Excepted person are taxed at a higher rate than adult individuals. There are also certain forms of income receipts (such as a distribution from a deceased estate) which are not subject to the higher rates of tax in the hands of a child.

Is there a gift tax in Australia?

No there is no gift tax in Australia, however when assets are gifted capital gains tax may be relevant.

What are the personal tax exemptions in Australia e.g. a gift from an overseas relative or a foreign insurance payout?

Gifts and insurance payouts from overseas relations are generally not taxable in Australia.

If I receive shares as part of my salary is this taxed in Australia?

Shares are regarded as payments in lieu of salary and wages and taxed at your marginal rate of tax in either the year they are granted or the year in which they vest (depending on the terms and conditions associated with the employee share scheme).

When I leave the country is a ‘termination payment’ taxed by Australia before I leave?

Australian sourced income will be subject to Australian withholding taxes. This is the cases regardless of whether payment of the termination amount is done before or after you leave the country.

What are other tax consequences of leaving the country?

As a resident of Australia, you will be deemed to have disposed of your non-real property assets for their market values on the date of disposal. This will give rise to a deemed capital gains tax event and an associated tax liability. However, you may choose to defer this taxation event to the point when you dispose of the asset in the future.

If you do not declare a capital gain on the assets in the year that you cease being a resident of Australia, it will be assumed by the Australian authorities that you have elected to defer the taxation point.

Are there any tax consequences of me transferring money from Australia to my say home country?

There are no tax consequences arising from the transfer of money back to your home country unless the source of funds is Australian income in which case there will generally be a tax liability.

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Tax Incentives for Early Stage Investors

Matthew Marcarian   |   12 May 2016   |   7 min read

The Australian Government has recently introduced tax incentives for early stage investors.

The incentives have been introduced as the new Division 360 of the Income Tax Assessment Act 1997 entitled “Early Stage Investments in Innovation Companies”.

The incentives apply from 1 July 2016 onwards.

The Tax Incentives mean that investors in a qualifying Early Stage Innovation Company (ESIC) will received a tax offset (a reduction in tax) in the amount of 20% of their investment.

A capital gains tax exemption is also available for investors or investors who hold the relevant shares for at least 12 months.

The Tax Offset

The tax offset means that a person who invests say $100,000 in a qualifying innovation company, will received a $20,000 tax offset (meaning a reduction in tax) for the year of their investment.

The tax offset for the investor is capped at $200,000 meaning that investments above $1M will not attract any further tax offsets.

The tax offset is non refundable, meaning that if an investor does not have a tax liability in the year they make the investment they will not receive any benefit. However, the benefit can be carried forward and claimed in the next year when the investor has a tax liability.

Who Can Claim the Tax Offset?

The offset is generally claimable by all natural persons provided they are considered sophisticated investors under section 708 of the Corporations Act.

If the person is not considered a ‘sophisticated investor’ they are only able to benefit from the tax offset if not more than $50,000 was invested by them. Investors can be either be resident or non resident of Australia.

The offset is also available to investors who are are beneficiaries of trusts to the extent that the relevant trust would have been entitled to a tax offset if it was an individual. This would mean that trusts that would need to satisfy the ‘sophisticated investor’ criteria, like an individual would, if it is seeking to invest more than $50,000 into an ESIC.

The tax incentives were announced as part of the National Innovation and Science Agenda. The new laws which were introduced as part of the Tax Laws Amendment (Tax Incentives for Innovation) Bill 2016, received Royal Assent   on May 2016.

The Capital Gains Tax Concessions

Essentially investor who qualify for tax incentives will receive a capital gains tax exemption on gains arising from their investment provided they hold the investor for at least 12 months and no longer than 10 years.

Where the investment is held for longer than 10 years the CGT rules provide for a deemed acquisition of the investment for CGT purposes on the 10 year anniversary of the investment for the market value of the interest on that day. That means that investors will receive the benefit of the CGT exemption for accrued gains up to 10 years.

Note that investors receive no CGT concessions for any short term gains made within 12 months.

What is a Qualifying Early Stage 
Innovation Company (ESIC)

Section 360-40 defines an Early State Innovation Company (ESIC). Essentially a company is an ESIC if it can satisfy all the limbs of that section. The two main limbs are the if it can show that it is:
(i) Early Stage
(ii) Innovative

Is a company Early Stage?

Generally, a company is early stage if either it is incorporated in Australia within the last 3 years or it can have been incorporate in the last 6 years if its total expenses over the last 3 years have been not more than $1,000,000.

Is a company Innovative?

Companies will qualify as innovative they can:

• Earn at least 100 points against the objective tests set
out in section 360-45;
• Self-assess their circumstances against the principles based
test; or
• Seek a ruling from the Commissioner about whether their
circumstances satisfy the principles based test.

The 100 Points Innovation Test

Under 360-45 a company can calculate whether it can get to ‘100 points’ by checking whether it has satisfied certain explicit innovation criteria.

These are set out in Appendix A to this document.

The Principles Based Test

A company will need to show that, it is

(i) the company is genuinely focussed on developing for
commercialisation one or more new, or significantly
improved, products, processes, services or marketing or
organisational methods; and
(ii) the business relating to those products, processes, services
or methods has a high growth potential; and
(iii) the company can demonstrate that it has the potential
to be able to successfully scale that business; and
(iv) the company can demonstrate that it has the potential to
be able to address a broader than local market, including
global markets, through that business; and
(v) the company can demonstrate that it has the potential to
be able to have competitive advantages for that business.

100 point innovation test

At a particular time (the test time) in an income year (the current year), a company has the points mentioned in an item of the following table if that item applies to the company at that time.

Innovation points potentially available at that time in the current year

       Column 1Column 2
ItemsPointsInnovation Criteria
175At least 50% of the company’s total expenses for the previous income year is expenditure that the company can notionally deduct for that income year under section 355-205 (about R&D expenditure).
275The company has received an Accelerating Commercialisation Grant under the program administered by the Commonwealth known as the Entrepreneurs’ Programme.
350At least 15%, but less than 50%, of the company’s total expenses for the previous income year is expenditure that the company can notionally deduct for that income year under section 355-205(about R&D expenditure).
450(a) the company has completed or is undertaking an accelerator program that:

(i) provides time-limited support for entrepreneurs with start-up businesses; and

(ii) is provided to entrepreneurs that are selected in an open, independent and competitive manner; and

(b) the entity providing that program has been providing that, or other accelerator programs for entrepreneurs, for at least 6 months; and

(c) such programs have been completed by at least one cohort of entrepreneurs.

550(a) a total of at least $50,000 has been paid for *equity interests that are *shares in the company; and

(b) the company issued those shares to one or more entities that:

(i) were not *associates of the company immediately before the issue of those shares; and

(ii) did not *acquire those shares primarily to assist another entity become entitled to a *tax offset or a modified CGT treatment) under this Subdivision; and

(c) the company issued those shares at least one day before the test time.

650(a) the company has rights (including equitable rights) under a *Commonwealth law as:

(i) the patentee, or a licensee, of a standard patent; or

(ii) the owner, or a licensee, of a plant breeder’s right; granted in Australia within the last 5 years (ending at the test time); or

(b) the company has equivalent rights under a *foreign law.

725Unless item 6 applies to the company at the test time:

(a) the company has rights (including equitable rights) under a *Commonwealth law as:

(i) the patentee, or a licensee, of an innovation patent granted and certified in Australia; or

(ii) the owner, or a licensee, of a registered design registered in Australia; within the last 5 years (ending at the test time); or

(b) the company has equivalent rights under a *foreign law.

825The company has a written agreement with:

(a) an institution or body listed in Schedule 1 to the Higher Education Funding Act 1988(about institutions or bodies eligible for special research assistance); or

(b) an entity registered under section 29A of the Industry Research and Development Act 1986 (about research service providers); to   co-develop and commercialise a new, or significantly improved, product, process, service or marketing or organisational method.

Please contact me on matthew.marcarian@csttax.com for more information on how the new incentives might apply to your situation.

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