ATO targeting mischaracterised lifestyle assets and private pursuits

The Australian Tax Office (ATO) is targeting privately owned and wealthy groups that display specific behaviours and characteristics in relation to their tax affairs and lifestyle.

A large focus is currently on lifestyle assets and private pursuits that generate deductions or are mischaracterised as business activities. The ATO is also looking at those assets and pursuits which are incorrectly accounted for in terms of Division 7A or Fringe Benefits Tax (FBT).

Activities that attract the Tax Office’s attention include:
– private aircraft ownership or activities
– art ownership and dealings
– car or motorbike racing activities
– luxury and charter boat activities
– enthusiast or luxury motor vehicles
– grape growing and other farming pursuits
– horse breeding, racing and training activities
– holiday homes and luxury accommodation provision
– sporting clubs and other activities involving the participation of principals or associates of principals of private groups.

The ATO is addressing the following tax risks:

Income tax
– Entities claiming deductions from ownership lifestyle assets or private pursuits against other income derived by the entity but not carrying on a business.
– Individuals disposing of assets and not declaring the revenue or capital gains on those disposals.
– Entities incorrectly apportioning deductions where assets have been used privately or periods not available for rent or hire.
– Division 7A – individuals purchasing assets through their business entities but applying assets to the personal enjoyment of a shareholder or associate of a private company giving rise to a deemed dividend.

FBT
– Individuals purchasing assets through their business entities but applying those assets to the personal enjoyment of an employee or associate giving rise to a FBT liability.

GST
– The purchasing of assets or expenditures concerning private pursuits for personal use through their business or related entities and claiming input tax credits they are not entitled to claim.

Superannuation
– SMSF’s acquiring assets but applying them to the benefit of the fund’s trustee or beneficiaries.

Super housing legislation

The First Home Super Saver (FHSS) Scheme and the downsizing contributions into superannuation measures passed Parliament on 13 December 2017.

As of 1 July 2017, individuals can make voluntary concessional and non-concessional contributions into their super fund as part of the FHSS Scheme. The scheme may help first home buyers save faster due to the concessional tax treatment within super.

From 1 July 2018, individuals can then apply to release their contributions, along with associated earnings, to help purchase their first home.

The downsizing contributions into super measure allows individuals who are 65 years and over to make a contribution into their super after selling their home.

Contributions of up to $300,000 from the proceeds of your main residence can be added into your super fund. Your spouse may also be able to make a contribution.

To be eligible for a downsizer contribution, you must have entered into the contract of sale on or after 1 July 2018 and have owned the home for 10 years or more.

Downsizer contributions will be taken into account for determining eligibility for the age pension.

Earning income from the sharing economy

The holiday season is a peak time for activities in the sharing economy to increase. During this time those participating in the sharing economy must not forget their tax obligations.

The most common sharing economy activities around the festive season include:
– Providing ride-sourcing services for a fare.
– Completing jobs or errands for payment.
– Renting out a room or a whole house or unit.
– Renting out a vehicle or a car parking space.

Depending on the activity, the tax obligations vary. The ATO is reminding those that participate in the sharing economy to consider the following:
– declaring income in their tax return
– what income tax deductions and GST credits they can claim for expenses related to earning income and what they can’t claim because of personal use
– how all of their sharing economy earnings added together affect their income tax and GST obligations
– keeping records of their income and expenses to meet their tax obligations

Excess Transfer Balance Determinations from January 2018

The Australian Tax Office will start sending Excess Transfer Balance (ETB) Determinations from January 2018.

ETB determinations will be sent to any individuals who have exceeded their transfer balance cap and have not taken any steps to correct this error.

If you manage a SMSF and have exceeded the balance transfer cap by less than $100,000 on 1 July 2017 as a result of income streams in existence prior to 20 June 2017, you have until 31 December 2017 to commute the excess capital, under transitional rules.

If you manage a SMSF and have exceeded the balance transfer cap by more than $100,000, under the transitional rules, you may receive the ETB determination. The ATO becomes aware of transitional balance cap breach based on information APRA funds pass on.

If you receive an ETB determination from the ATO, remember the following:
– The quicker the member rectifies the amount owing set out in the ETB Determination from the retirement phase, the lower the amount of excess transfer balance tax they will be required to pay.
– The SMSF trustee must report information relevant to the member to the ATO, so that they have all the relevant information needed. It is important to do this straight away, if it has not already been done.
– You must commute the amount owing as listed on the ETB Determination from retirement phase. If you choose to remove the amount by making a large pension payment, you will still be in excess of your transfer balance cap as the large pension payment will not, under the circumstances, result in a debit on your transfer balance account.
– You may keep the excess amount determined in the ETB Determination in an accumulation phase account, unless you are commuting a death benefit income stream. If you are, the amount needs to be removed from the super stream.
– Ensure minimum pension payment standards are met at the time of commuting money into your income stream.

If you have any questions or queries regarding Excess Transfer Balance Determinations and how this may affect you, please do not hesitate to contact our office.

Annual ATO closure

The Australian Tax Office (ATO) will be closed from midday Friday 22 December 2017 to 8.00am Tuesday 2 January 2018 over the festive season.

The Tax Agent Portal Dashboard and BAS Agent Portal Dashboard will be available to check portal availability.

The ATO’s technical help desk will be available from 7.00am to 6.00pm weekdays, excluding public holidays and 10.00am to 4.00pm Saturdays to assist with technical log on, connection, firewall and VPN issues.

The Tax Office will hold returns and forms not processed before the annual closure until processing resumes in the New Year.

Lodgements made after 7 December may not issue until the New Year.

ATO action on overdue SMSF annual returns

The Australian Tax Office (ATO) is cracking down on self-managed super funds (SMSFs) that have overdue SMSF annual returns, particularly those with two or more returns overdue.

As part of its compliance action, the ATO is currently:
– Cancelling approximately 9,000 ABNs of SMSFs that show no evidence of operating
– Writing to SMSF trustees who are in pension phase to remind them that they still have a lodgment obligation
– Continuing to focus on SMSFs with high levels of income and/or high-value assets who also have overdue returns
– Taking further compliance and audit action on selected SMSFs
– Visiting selected tax agents to obtain feedback on why their SMSF clients’ lodgments are overdue
– Contacting tax agents by phone to obtain an agreed date for lodgment of overdue SMSF annual returns.

SMSFs that do not meet the agreed lodgment timeframes will be subject to serious financial implications.

Early payments

Taxpayers are being reminded they can prepay amounts towards their expected tax bill to help stay on top of their tax and avoid falling into debt.

To make a prepayment to the Tax Office, you must get the correct payment reference number, decide how much to pay and choose a payment method.

Using the correct payment reference number is critical in ensuring the ATO credits the right account.

The payment reference number can be found on a relevant notice or payment slip received from the ATO, or through the ATO portals.

The ATO’s research shows keeping amounts for GST, super and income tax payments separate from other business affairs, i.e., in a separate bank account or by making a prepayment helps to stay on top of payments to the Tax Office.

SMSFs warned of risky retirement planning

The ATO is warning self-managed super fund (SMSF) trustees about the risks of some emerging retirement planning arrangements.

Retirees or SMSF trustees who are involved in any illegal arrangement, even by accident, may face severe penalties, risk losing their retirement savings, and potentially, their rights as a trustee to manage their own fund.

The Tax Office has released additional information through their Super Scheme Smart Program to help educate retirees and trustees of these complex tax avoidance schemes and arrangements.

Super Scheme Smart provides case studies and information packs to ensure taxpayers are informed about illegal arrangements including what warning signs to look for and where to go for help.

Many of the arrangements are cleverly designed to look legitimate, give a taxpayer a minimal or zero amount of tax or tax refund or concession, aim to give a present day tax benefit and involve a fair amount of paper shuffling.

Some arrangements may be structured in a way which appears to satisfy certain regulatory rules, however, these arrangements are often ‘too good to be true’ and are in fact illegal.

Among the ATO’s previous concerns about dividend stripping arrangements and contrived arrangements involving diversion of personal services income to an SMSF, there are some new arrangements on the Tax Office’s radar, including:
– Artificial arrangements involving SMSFs and related-party property development ventures.
– Arrangements where an individual or related entity grants a legal life interest over a commercial property to an SMSF. This results in the rental income from the property being diverted to the SMSF and taxed at lower rates whilst the individual or related entity retains legal ownership of the property.
– Arrangements where individuals (including SMSF members) deliberately exceed their non-concessional contributions cap to manipulate the taxable component and non-taxable component of their fund balance upon refund of the excess.

If you are concerned about your involvement with such arrangements, you can contact the Tax Office early to work towards a resolution.

ATO’s data matching programs

The Australian Tax Office (ATO) has sophisticated data matching programs in place to ensure individuals and businesses are complying with their obligations and to uphold the integrity of the tax system for the community at large.

The Tax Office uses data matching to pre-fill tax returns, ensure people and businesses are lodging tax returns and activity statements when required, correctly declaring their income and claiming offsets, and meeting their tax obligations.

It helps to detect dishonest individuals and businesses operating outside the tax system, detect fraud against the Commonwealth and to recover debt.

The following areas are currently under close scrutiny:

Credit and debit cards
The ATO obtains data from banks and financial institutions to identify the total credit and debit card payments received by Australian businesses.

Specialised payment systems
Data on electronic payments made through specialised payment systems to Australian businesses is analysed in conjunction with data collected through the credit and debit card data-matching program.

Business transactions through payment systems
Data is collected from organisations that process electronic payments for businesses in a report.

Online selling
Details of online sellers who sell goods and services to the value of $12,000 or more is attained. Data is obtained from online selling sites where the data owner or its subsidiary:
– Operates a business in Australia that is governed by Australian law.
– Provides an online marketplace for businesses and individuals to buy and sell goods and services.
– Tracks the activity of registered sellers.
– Has clients whose annual trading activity amounts to $12,000 or more.
– Has trading activity for the years in focus.

Ride-sourcing
Data is obtained from ride-sourcing facilitators operating in Australia and/or their financial institutions to identify ride-sourcing drivers. This information is used to notify drivers and help them understand their tax obligations.

Motor vehicle registries
The Tax Office acquires data from all the state and territory motor vehicle registering bodies to identify all motor vehicles sold, transferred or newly registered, where the transfer and/or market value is $10,000 or more.

SMSF annual return for pension phase trustees

Self-managed super fund (SMSF) trustees who are in pension phase must lodge their SMSF annual returns if they remain active, or choose to wind up the fund.

The ATO is warning SMSF trustees about their regulatory obligations and is paying close attention to those SMSFs that are not meeting their lodgment obligations.

Trustees must lodge a Self-managed superannuation fund annual return 2017 if it was a self-managed super fund on 30 June 2017, or a self-managed super fund that was wound up during 2016-17.

Super funds that are not SMSFs at the end of 2016-17 must use the fund income tax return 2017 and, where required, a separate super member contributions statement.

Even if your fund does not have a tax liability, your SMSF must lodge an SMSF annual return.