In the Federal Budget last April, the Government announced it would make changes to the tax treatment of testamentary trusts, and an exposure draft of amendments was released by Treasury at the start of the current quarter.

The assessable income of a minor from a distribution from a testamentary trust is taxed at ordinary rates, rather than the highest marginal tax rate like other passive income received by minors. This has led some taxpayers to inject unrelated assets into one of these trusts to take advantage of the concession that is available to minor beneficiaries of these trusts.

This change will ensure that this tax concession available to minors in these trusts only applies in respect of income generated from assets of a deceased estate that are transferred to the testamentary trust under a will, or the proceeds of the disposal or investment of those assets. […]

When the legislation to limit the amount that can be transferred into a pension account took effect on 1 January 2017, there was always written into those rules a requirement for the transfer balance cap (TBC) to eventually be indexed.

The legislation, the Treasury Laws Amendment (Fair and Sustainable Superannuation) Act 2016, provides that the general TBC is to be indexed in increments of $100,000 if the indexation rate reaches a prescribed figure (and this is calculated using a formula set out in the legislation). […]

For some time now, the ATO’s data matching arm has been collecting bulk records from Australian cryptocurrency designated service providers. It follows a growth in Australian taxpayer participation with bitcoin and other cryptocurrency assets over recent years, with estimations from the ATO that between 500,000 to one million local taxpayers (including SMSFs) have invested in crypto assets.

ATO Deputy Commissioner Will Day announced that it will be working with other regulators, particularly AUSTRAC and ASIC, to make sure tax laws are adhered to within a whole-of-system approach. “The ATO is also working in a joint international effort as part of the Joint Chiefs of Global Tax Enforcement” (also known as J5) “aimed at investigating cryptocurrency-related tax evasion and money laundering,” he said.

According to a report from US-based blockchain and crypto news site BitcoinerX, the ATO expects a three-fold return on an estimated $1 billion spend on chasing what it calls “crypto tax”. […]

Draft guidance directs that capital gains are not to be included in FITO limit
A draft taxation determination has been issue by the ATO to clarify that capital gains are not included when calculating the foreign income tax offset (FITO) limit.

TD 2019/D10 says the FITO limit calculation involves a comparison between Australian tax actually payable and the Australian tax that would be payable if certain income, and deductions reasonably related to that income, were disregarded. Generally, the higher the amount of income captured, the higher the FITO limit.

The draft determination states that if a taxpayer made a capital gain in respect of which you have not paid any foreign income tax, no amount in respect of that capital gain will be included. The ATO states that amounts are included if they are amounts of “ordinary” or “statutory” income from a source “other than an Australian source”.

But it adds that a net capital gain does not have a source. “It is a product of capital gains and capital losses made during the income year from Australian and non-Australian sources, the application of unapplied net capital losses from earlier income years, and applicable discounts.” […]

High Court confirms Full Federal Court’s Harding tax residency ruling
The ATO’s application for special leave in the residency matter of Harding v Commissioner of Taxation has been refused by Australia’s High Court. This means the decision of the Full Federal Court (FFC) holds, which essentially provides a wider interpretation of the meaning of “permanent place of abode” than had previously been the case.

It also means it is going to make it easier for expatriates to prove that they are non-residents for tax purposes. The FFC concluded, and now appears to establish the principle, that a permanent place of abode need not be the same particular dwelling (that is, the same apartment, unit or house) in a foreign country.

To re-cap, in February the FFC overturned a Federal Court decision that had ruled a taxpayer was a resident. The Federal Court decision held that the taxpayer, who had lived and worked in the largely tax-free Arabian Peninsula, was a resident for tax purposes on the basis that the home he had established there (a rented fully-furnished apartment) was not sufficiently permanent. […]

Multinational tax avoidance is proving to be a sore point for Australians. You’ve heard about the big players – Facebook, Google, Apple – and there is speculation they might be engaging in dodgy transfer pricing practices.

What is transfer pricing?
When two companies that are part of the same group trade with each other, they need to establish a price for that transaction. That amount is the transfer price.

Say an Australian-based subsidiary of Facebook buys something from a France-based subsidiary of Facebook. The price Australia pays for its purchase is the transfer price.

Transfer pricing is necessary. The two parties being separate legal entities have to establish a commercial contract. It is not illegal, and does no harm by itself. Transfer MISpricing, however, may do harm for government revenues. […]

ATO takes aim at ‘you-scratch-my-back’ auditing arrangements
It has long been an accepted standard that the auditor of an SMSF needs to be independent of that fund, and be a third party entity to the SMSF. This requirement is written into the legislation.

There have of course been breaches of this requirement, and instances where auditors and/or fund trustees have suffered administrative penalties or even disqualification for non-compliance in this area.

The more blatant breaches of the requirement to use a third party auditor involve someone auditing their own SMSF, or the fund of close family members. But another concern for the ATO relates to auditors who enter into arrangements that reflect that old idiom “you scratch my back, I’ll scratch yours”. The ATO has labelled these as reciprocal auditing arrangements.

It says that such arrangements arise where two or more auditors, each with their own SMSF, agree to audit the other’s fund. The ATO likens the situation to the scenario of a two-partner practice where one partner takes on the work of auditing an SMSF of which the other partner is trustee. […]

The SMSF annual return for 2019 has a number of new questions and labels that SMSF trustees need to be aware of.

In previous years, the ATO advised trustees that the question in the annual return regarding whether Part B of the audit report was qualified could be answered with a “no” if the only reason the auditor qualified Part B was because they could not confirm the information provided to them (for example, opening account balances).

The ATO advice for this year is that this is no longer the case, and that trustees’ answers must correctly convey the auditor’s written opinion.

The 2019 SMSF annual return will also need confirmation that Part A of an audit report is qualified. Part B of the auditor’s report gives the auditor’s opinion on the fund’s compliance with super laws and Part A of the report gives the auditor’s opinion on whether the fund’s financial statements are fairly presented (that is, there are no material misstatements).

Trustees are now required to answer “yes” if the audit report was qualified at Part A and/or Part B, regardless of the auditor’s reasons for the qualification. […]

GST obligations to be included under the director penalty regime
The strengthening of the director penalty regime has seen director penalty notices (DPNs) extended to superannuation guarantee obligations from 1 March 2019.

Now it looks like DPNs for GST are set to take affect from 1 October 2019 on the back of recent legislation, Treasury Laws Amendment (Combating Illegal Phoenixing) Bill 2019, which lapsed at the dissolution of Parliament in the lead up to the last federal election, but has just been revived.

Schedule 3 to the bill allows the Commissioner to collect estimates of anticipated GST liabilities and make company directors personally liable for their company’s GST liabilities in certain circumstances. This also applies to LCT and WET as these taxes are jointly administered with the GST.

The estimates regime (Division 268 in Schedule 1 to the TAA 1953) enables the Commissioner to estimate unpaid amounts and to recover the amount of those estimates from taxpayers. The new legislation extends this regime to include GST. […]