30 JUNE 2020 YEAR END TAX PLANNING

The current financial and income tax year ends on Tuesday 30 June 2020.  Despite the economic impacts of COVID-19, there still might be items that require your attention by 30 June 2020 if you are an individual taxpayer, operate a private company or trust, or own a business or investment.

Please click on the links below for:

As always, we are here to help. If you have any questions, or require any assistance with your year-end tax planning, please do not hesitate to contact us.

KEY SUPERANNUATION ISSUES

Australia’s superannuation rules have become increasingly complicated following significant changes in recent years. This section focuses on the current limits applying to contributions received by your superannuation fund on or before 30 June 2020.

Annual Concessional (ie Tax Deductible) Contribution Limits

The contribution caps for tax-deductible superannuation contributions for all eligible individuals are as follows:

Age at Previous 30 June                    2019-20 Year
Under 65                                             $25,000
65 to 74 and satisfy work test               $25,000
75 and over                                         Mandated Contributions Only

Notes 
  1. The above comments are for your general information. Please contact us if you require specific advice about the level of voluntary superannuation contributions, if any, that are appropriate for your circumstances
  2. Personal superannuation contributions on your own behalf are only tax deductible in the year in which they are received by the Super Fund and where a notice of the claim is given to your superannuation fund
  3. Excess concessional contributions above these caps are included in your assessable income – you may, but need not, withdraw the tax thereon from your super fund
  4. The work test (ages 65 to 74) requires minimum gainful employment of at least 40 hours within 30 consecutive days
  5. Mandated employer contributions for those aged 75 and over comprise only Superannuation Guarantee Charge (“SGC”) and Industrial Award contributions
  6. Concessional contributions can only be made in relation to a person under 18 if they are an employee or carry on business

Personal Concessional Superannuation Contributions By Employees

From 1 July 2017 employees have been able to top up their employer contributions by making tax deductible personal contributions directly to their superannuation account – before doing so they should confirm the “space” available below the $25,000 concessional contributions cap and understand the consequences should they exceed that cap.

Individuals claiming a tax deduction for personal superannuation contributions must complete the notice form and give it to their superannuation fund before the earlier of the date of lodging their 2020 income tax return or 30 June 2021. You must also receive an acknowledgement from the fund before lodging your 2020 income tax return.

Division 293 Tax

Division 293 imposes an extra 15% on concessional superannuation contributions within the individual’s contribution cap (see above) to the extent that the individual’s concessional contributions and adjusted income for surcharge purposes exceeds $250,000. Adjusted income comprises the sum of:

  • taxable income
  • distributions to the individual subject to Family Trust Distribution Tax
  • reportable fringe benefits
  • net investment losses

Division 293 increases the tax rate on concessional contributions above the $250,000 threshold and within the concessional contributions cap from 15% to 30%. This higher rate is still 17% below the current maximum marginal personal tax rate including the Medicare Levy.

Non-Concessional Contributions

In very general terms the non-concessional (i.e. after tax) contribution caps for an individual with accrued superannuation entitlements of less than $1.6 million at 30 June 2019 are:

Under Age 65

  • General limit (maximum – see below)                     $100,000
  • With three year bring forward rule (maximum)        $300,000

Contributions above $100,000 will only be available where total superannuation entitlements were less than $1.5 million at 30 June 2019 (or $1.4 million for contributions over $200,000).

Age 65 to 74 and meet the work test (see above)

  • General limit (maximum – see below)                     $100,000
  • With three year bring forward rule                    Not applicable

The maximum non-concessional contributions will also be reduced if non-concessional contributions exceeded $100,000 in the 2019 and/or the 2018 tax year.

Superannuation Co-Contribution

Where your total income for the 2020 year is less than $53,564, you are under age 71 and at least 10% of your total income comes from either employment related activities or carrying on a business, you may be entitled to a Government co-contribution if you make personal superannuation contributions. If your total income is less than $38,564 and you make personal contributions of $1,000 you will receive the maximum co-contribution of $500 which phases out on a progressive basis.

Please contact us if you require further information.

General Reminder on Timing of Superannuation Contributions

In order for superannuation contributions to count against this year’s contribution caps they must normally be received by the relevant superannuation fund before the end of 30 June. You should be cautious of possible delays through clearing houses and other electronic payment processing systems and bear in mind that the last working day of this financial year is Tuesday 30 June.

Contributions to your self-managed superannuation fund should be received and credited into the fund’s bank account before the end of 30 June.

Compulsory Superannuation Guarantee Charge (SGC) contributions for the June 2020 quarter must be received by the relevant fund by 28 July 2020 to avoid penalties. SGC Contributions will not be tax deductible until next year if paid in July.

Access to Superannuation Benefits – Preservation Ages

You cannot normally access your superannuation benefits until you reach your preservation age and satisfy a condition of release. Preservation ages are currently as follows:

Date of Birth                Preservation Age            Earliest Release Date

1 July 1961 to                           57                           From 1 July 2018
30 June 1962
1 July 1962 to                           58                           From 1 July 2020
30 June 1963
1 July 1963 to                           59                           From 1 July 2022
30 June 1964
On or after 1 July 1964             60                           From 1 July 2024

Superannuation Pension Drawdown Rates
Where you are receiving an account based superannuation pension you should ensure that you draw down the minimum annual pension by 30 June each year. These amounts for this financial year are calculated by applying the following percentages to your pension account opening balance at 1 July 2019.Age of Recipient           Current Pension FactorUnder 65                                         2%
65 – 74                                           2.5%
75 – 79                                           3%
80 – 84                                           3.5%
85 – 89                                           4.5%
90 – 94                                           5.5%
95 & over                                        7%There is no maximum pension drawdown except in relation to transition to retirement income streams where the maximum annual pension is 10% of the opening balance.

Superannuation Guarantee Charge Opt Out for High Income Employees

Individuals with more than one employer can exceed the $25,000 concessional contribution cap merely as a result of combined SGC contributions.

From 1 January 2020, these individuals can apply for a partial SGC exemption certificate. Please contact us if you require further information.

Splitting Concessional (i.e. Tax Deductible) Superannuation Contributions

A member of a superannuation fund in accumulation phase can elect to “split” part or all of their concessional (ie tax deductible employer and/or personal) superannuation contributions with their spouse where permitted by their superannuation fund. Up to the lesser of 85% of your concessional contributions and the $25,000 cap, can be split with a spouse under age 55 or who is under age 65 and not retired.

This strategy is useful to help equalise superannuation entitlements where only one member has accumulated entitlements above the $1.6 million transfer balance cap. It can also increase the account balance for the older spouse who will reach the age 60 tax exempt status for benefits first.

Please contact us to confirm your eligibility and documentation requirements before undertaking contributions splitting.

COVID-19 Early Release of Superannuation

Individuals financially affected by COVID-19 are able to access up to $10,000 of their superannuation prior to 30 June 2020 and an additional $10,000 from 1 July 2020 to 24 September 2020.

In order to be eligible, you must satisfy one or more of the following requirements:

  • unemployed
  • eligible to receive a job seeker payment, youth allowance, parenting payment, special benefit or farm household allowance
  • on or after 1 January 2020, you are:
    • made redundant; or
    • working hours have been reduced by 20% or more; or
    • if you were a sole trader, your business was suspended or there was a reduction in your turnover of 20% or more.

The application is available through ATO online services in myGov.

First Home Super Saver (“FHSS”) Scheme

The FHSS allows voluntary superannuation contributions made from 1 July 2017 to be withdrawn for a first home deposit. The FHSS provides for contributions up to $15,000 per annum and $30,000 it total (both subject to the relevant contribution caps) to be contributed to superannuation. It normally provides a 15% tax saving on money channeled through superannuation for those 18 or over who have never owned real property in Australia and are buying their first home.

Eligible participants must buy or build their first home within 12 months after applying to the ATO for a release authority. Released amounts are taxed at the member’s marginal tax rate less a 30% non-refundable offset.

$300,000 Additional Superannuation Contributions on Downsizing Home Sales

Individuals aged 65 and over are able to make an additional non-concessional contribution of up to $300,000 from the proceeds of selling their home that they have owned for more than 10 years where the contract was entered into on or after 1 July 2018. This downsizer contributions cap of $300,000 for each spouse in a couple (i.e. up to $600,000 in total) will not count toward the non-concessional contributions cap. It will also be exempt from the contribution rules for people aged over 65 and also from accepting contributions from people with superannuation balances over $1.6m. Qualifying individuals should consider making any other non-concessional contributions before making a downsizer contribution.

Australian Financial Services Licence General Advice Disclaimer

The comments provided above are general in nature and are not personal financial product advice.

Should we be engaged to provide any personal financial product advice, it is provided by UHY Haines Norton (ABN 85 140156) whom is an authorized representative under AFSL No. 485258 held by Haines Norton Sydney Advisers Pty Ltd. Personal financial product advice will take into account your objectives, financial situation and needs. Before acting on any personal financial product advice you must consider the appropriateness of it having regard to your objectives, financial situation and needs. You should carefully read and consider any Product Disclosure Statement (PDS) that is relevant to any financial product that has been discussed before making any decision about whether to acquire the financial product.

You can contact us on (02) 9256 6600 or by visiting our website at www.uhyhnsydney.com.au.

INDIVIDUAL TAX PLANNING ISSUES OUTSIDE SUPERANNUATION

INDIVIDUALS

No Changes to Personal Tax Rates

There are no changes to the tax rates for the current financial year and through to 30 June 2022.

The current tax rates for Australian tax residents are:

Taxable Income ($)       Tax Rate (%)

0 – $18,200                       Nil
$18,201 – $37,000            19% for each $1 over $18,200
$37,001 – $90,000            $3,572 plus 32.5% for each dollar over $37,000
$90,001 – $180,000          $20,797 plus 37% for each dollar over $90,000
$180,001 and above         $54,097 plus 45% for each dollar over $180,000

The Medicare Levy of 2.0% of taxable income needs to be added to the above rates.

Gifts and Deductions

Gifts or donations of at least $2 to eligible charities made by 30 June 2020 are tax deductible this year. Deductions for larger donations can be spread over up to 5 income years. In all cases you should ensure the charity is endorsed as a tax deductible gift recipient and keep your receipt.

Work Related Car Expenses – Limited Deduction Choices

Individual taxpayers can only claim a deduction for car expenses using one of the following two methods:

  • 66 cents per eligible kilometre travelled (up to a maximum of 5,000 kms)
  • log book method – the business usage percentage established by a log book kept during a representative 12 week period within the current year or the previous four years applied to actual costs of operating the car including lease rentals or depreciation and finance cost
Where an employee’s car has comparatively limited business use it may be tax effective for the employee to “salary package” the car if permitted by their employer. There is a range of service providers in this area offering novated lease salary packaging opportunities which reduce the employer’s administrative burden of providing fringe benefits.

Medicare Levy Surcharge – Inadequate Private Health Insurance

A Medicare levy surcharge applies where your income for surcharge purposes exceeds prescribed thresholds and you do not have adequate private health insurance.

The 1% surcharge commences to apply for individuals with income for surcharge purposes exceeding $90,000 (singles) and $180,000 (couples) plus $1,500 for the second and subsequent dependent children. The maximum surcharge of 1.5% applies for incomes above $140,000 and $280,000 respectively.

Income for surcharge purposes comprises:

  • taxable income of the taxpayer and their spouse
  • distributions to the above subject to the Family Trust Distribution Tax
  • reportable fringe benefits
  • reportable (eg salary sacrifice) superannuation contributions
  • total net investment losses

If you expect your income to rise above the relevant threshold next financial year and you do not currently have qualifying private health insurance you may need to consider taking it out. The cost of the premiums may be less than the surcharge involved.

Private Health Insurance Tax Offset

Where individuals are covered by qualifying private health insurance they may qualify for the private health insurance offset on the associated premiums. This can be accessed as a reduction in the premium or a tax refund.

Singles qualify for a full or partial offset where their income for surcharge purposes (see definition above) is less than $140,000 plus $1,500 for each dependant child after the first. Couples qualify for a full or partial offset where their income for surcharge purposes is less than $280,000 plus $1,500 for each dependent child after the second. In both cases the offset varies between 8.352% and 33.413%% of the premiums depending on the contributor’s age and family income.

Lifetime Health Insurance Cover Loading – No Private Health Insurance After Age 30

If you do not have private hospital cover with an Australian registered health fund on your Lifetime Health Cover base day and then decide to take out hospital cover later in life, you will pay a 2% loading on top of your premium for every year you are aged over 30 and do not have cover.

Your Lifetime Health Cover base day is normally the later of 1 July 2000 or the 1st of July following your 31st birthday.

No Deduction for Personal Travel Expenses to Inspect Your Residential Investment Property

Since 1 July 2017 personal travel expenses associated with inspecting, maintaining or collecting rent for a residential rental property ceased to be tax deductible. Normal property management expenses remain tax deductible.

Exotic “Tax Driven” Investments

We discourage investments in “tax driven” investments unless they can be expected to deliver sound commercial returns (assistance may be required from an Australian Financial Services Licence Holder to assess the viability of the project). We are not licensed to comment on the commercial merits of such investments.

Removal of Capital Gains Tax Main Resident Exemption for Certain Overseas Home Owners

A change in law on 12 December 2019 means if you are a foreign tax resident at the time you dispose of your previous residential home in Australia, you will generally not qualify for an exemption from capital gains tax on any gain.

However, for existing homes owned prior to 9 May 2017, an exemption from capital gains tax may apply providing a contract for the sale of the home is entered into on or before 30 June 2020.

TAX PLANNING FOR INVESTORS

Deducting Prepaid Expenses
Individual non-business investors and small business taxpayers (currently aggregated turnover under $10 million) are able to claim tax deductions for prepayments of tax deductible expenses this financial year where the period covered by the prepayment does not exceed 12 months and ends by 30 June 2021. These taxpayers may be able to reduce this year’s taxable income by pre-paying up to 12 months of tax deductible interest expense by the end of June 2020 – banks have special loan products in order to facilitate interest in advance payments.  Please check with your bank if you wish to prepay interest as not all loan products qualify.Note that different rules apply to non-small business taxpayers and to “tax shelter” investments.Capital Gains Tax (“CGT”) – Timing of Asset SalesFor CGT purposes, the date of acquisition or disposal of an asset is normally the date of exchange of the relevant contract (and not settlement). The difference between a 30 June and a 1 July sale contract date can be effectively a full year difference in the payment due date for any resulting CGT liability.The long term CGT discount (50% for resident individuals; 0% for non-residents and 33.33% for superannuation funds in accumulation phase) is generally available where assets have been owned for more than 12 months between the dates of the purchase and sales contracts. If you are close to the 12 month ownership period, you should weigh up the ability to access this discount when considering the timing of a sale, along with other commercial considerations such as the asset’s current price and its potential price volatility.

If you have realised taxable capital gains from selling profitable investments during the year you may be able to reduce your CGT liability by selling other assets with unrealised capital losses by 30 June this year. For example, if you have unrealised losses on listed shares you could sell them to unrelated third parties in order to crystallise the loss. “Wash” sales to related parties, such as a family trust, can raise tax avoidance issues as can “parallel” trades in the same asset (eg one taxpayer sells listed shares and a related taxpayer buys shares in the same company).

Capital Loss Record Keeping

Where you have made a capital loss you should keep records of the transactions giving rise to the loss for a further four years after you receive your income tax assessment for the year in which the loss is applied against taxable capital gains.

You can choose the order in which capital losses are applied. In general they should normally be applied first against “short term” capital gains realised on assets held for less than 12 months which do not qualify for the 50% discount.

BUSINESS TAX ISSUES INCLUDING TAX RATES AND THRESHOLDS

COVID-19 Stimulus Measures and Payments  

These business asset purchase stimulus measures apply for a limited time only so it can be beneficial for businesses to purchase qualifying assets by 30 June 2020.

  • Instant Asset Write-Off for new and used assets (other than cars above $57,571) purchased and ready to use between 12 March 2020 to 30 June 2020 for up to $150,000 for businesses with an aggregated turnover of under $500m.
  • Accelerated Depreciation for other new assets purchased and ready to use between 12 March 2020 and 30 June 2021 are eligible for a 50% upfront deduction and the remaining 50% depreciable under the usual rates.    

Many businesses may also be receiving government stimulus payments such as the JobKeeper, Cashflow Boost and State Government Grants.  Other than the Cashflow Boost, they are all assessable (taxable) income for tax purposes.

What is Your Company’s Tax Rate?

The 2020 year company tax rate is 30% unless the company qualifies as a “Base Rate” (small) entity which has a 27.5% tax rate.  For Base Rate companies the tax rate will reduce to 26% for the 2021 year and then to 25% for the 2022 year.   For all other companies the rate remains at 30% for the 2021 and 2022 years.

Broadly, a Base Rate entity has an “aggregated” turnover of less than $50m for the 2020 year and has less than 20% “passive income” in its own turnover.  The $50m in aggregated turnover threshold also applies for the 2021 and 2022 years.

Aggregated turnover includes the turnover of the company and both its:

  • connected entities – these are entities either controlled by, or which control the entity; and
  • affiliated entities – these are entities that act or could reasonably be expected to act in accordance with the entity’s directions or wishes or in concert with the entity
Passive income includes: 
  • dividends other than non-portfolio dividends
  • franking credits on such dividends
  • non-share dividends
  • interest income
  • royalties and rent
  • gains on qualifying securities
  • net capital gains
  • income from trusts and partnerships to the extent that it is referable directly or indirectly to passive income

Dividend Imputation Issues for “Base Rate” Companies

For dividends paid or credited by 30 June 2020 for Base Rate Companies, they can only be franked at the 27.5% tax rate and not the higher 30% tax rate.

This results in higher “top up” tax where fully franked dividends are paid to individuals on higher marginal tax rates.

For individual shareholders with ongoing taxable incomes above $180,000, the top up tax rate on dividends franked at 30% will be 24.3% of the cash component of the dividends.

For individual shareholders with ongoing taxable incomes above $180,000, the top up tax rate on dividends franked at 27.5% will be 26.9% of the cash component of the dividends.

With the change in tax rate to 26% from 1 July 2020, the franking rate will also reduce to 26% meaning more “top up” tax for individuals on higher marginal tax rates.

What are the Current Small Business Entity (SBE) Tax Concessions – $10 Million Turnover Test

The SBE rules apply to a sole trader, partnership, company or trust which carries on a business for all or part of the year and has an “aggregated” (group) turnover of less than $10m per annum.

Aggregated turnover refers to the SBE’s annual turnover (see below) and the turnover of the SBE’s:

  • connected entities – these are entities controlled by the SBE or which control the SBE
  • affiliated entities – these are entities that act or could reasonably be expected to act in accordance with the SBE’s directions or wishes or in concert with the SBE

Annual turnover means the total income that the relevant entity derives in the ordinary course of carrying on a business. It does not include income that is not connected to a business.

The current tax benefits of qualifying as an SBE include:

  • simplified capital allowance (depreciation) concessions
  • simplified trading stock concessions
  • potential access to CGT small business concessions (see below)
  • immediate tax deduction for business start-up costs
  • immediate tax deduction for prepaid expenses where the goods or services will be provided within 12 months of the prepayment
  • option to use GST adjusted notional tax method to work out PAYG instalments
  • Fringe Benefits Tax exemption for certain on site car parking
  • ability to account for GST on a cash basis

The turnover threshold for the small business CGT concessions remains at $2 million where the alternative $6 million net asset value test is failed. The aggregated turnover for the CGT small business rollover is also $10 million.

Instant Business Asset Write Off for “Small” Businesses (assets purchased before 12 March 2020)
 
Eligible small business taxpayers (see above) can immediately deduct the cost of business plant and equipment, including motor vehicles, where the purchase and installation date and the cost is within:

Purchase Dates                                                                   Cost ($)

From 7.30pm 12 May 2015 until 28 January 2019                   $20,000
From 29 January 2019 until before 7.30pm 2 April 2019          $25,000
From 7.30pm 2 April 2019 until 11 March 2020                       $30,000

If an asset costs more than the thresholds above, the full cost can be placed in a small business simplified depreciation pool and depreciated at 15% in the first year and 30% in subsequent years.

Where the purchaser is registered for GST, the cost of the asset for the threshold purposes is exclusive of GST.  Conversely, where the purchaser is not registered for GST, the cost of the asset is inclusive of GST.

The following asset exclusions apply:

  • horticultural plants
  • capital works
  • assets allocated to a low value pool or software development pool
  • primary production assets where an election is made to apply standard depreciation rates
  • assets leased out under a depreciating asset lease

Off the shelf computer software is eligible for the write off. In house software is also eligible except where the cost is allocated to a software development pool.

Where an asset costs less than the threshold and is only partially used for business purposes the estimated taxable purpose proportion of the cost is an outright tax deduction. Where an asset costs more than the threshold but the taxable proportion is less than the threshold that cost must be depreciated under existing rules rather than as an immediate write off.

Instant Business Asset Write Off for “Medium” Businesses (assets purchased before 12 March 2020)

Medium businesses with a turnover of between $10m and less than $50m can immediately deduct the cost of business plant and equipment, including motor vehicles, where the purchase and installation date and the cost is within:

Purchase Dates                                                              Cost ($)

From 7.30pm 2 April 2019 until 11 March 2020                    $30,000

Deferring Business Income Generally

Income received in advance of the provision of the relevant goods or services may be able to deferred until the next tax year. The Tax Office has ruled that income which is subject to a “contingency of repayment” can also be deferred.

Base Rate companies that defer income beyond 30 June 2020 will also benefit from the reduction in the small business corporate tax rate.

Deductions for Employee Bonuses

Deductions can be claimed this year by business taxpayers for bonuses to be paid after year end to unrelated employees where the business has definitely committed to pay the bonus by 30 June 2020. This requires that the amount of the bonus (or its method of calculation) has been finally determined and, preferably, notified to the relevant employees by this date.

Bad Debt Deductions

In order to claim a bad debt tax deduction this financial year the debt must have been included in the taxpayer’s assessable income and be physically written off in the business’ accounting records on or before 30 June. Businesses may then also be able to recover any GST remitted on these debts.

Moneylenders can also claim bad debt deductions for normal business loans.

If there has been a significant change in ownership or control of a creditor company, bad debt deductions may not be available unless the company satisfies the “same business test”. A discretionary trust may need to make a family trust election or satisfy an alternative test.

Trading Stock Valuation Rules

Trading stock on hand at year end can be valued at (full absorption) cost, market selling value or replacement cost. Normally the lowest value is chosen to minimise taxable income. However, if your business has incurred losses or you expect your marginal tax rate to rise in future, a higher year end value may be preferred.

Obsolete Stock or Plant and Equipment

Obsolete stock and obsolete plant and equipment should be physically scrapped by 30 June 2020 in order to claim a full tax deduction this year. However, where obsolete stock is not scrapped it may still be possible to justify a lower value for tax purposes.

Reportable Fringe Benefits and Employee Share Scheme Income on PAYG Payment Summaries

Where the grossed up value of fringe benefits provided to an employee during an FBT year exceeds $2,000 this total must be reported on the employee’s annual payment summary. Certain benefits are excluded principally:

  • meal entertainment unless salary packaged
  • car parking
  • certain “pooled” cars

Employees of Not for Profit Organisations are subject to a $5,000 annual cap on salary sacrifice meal entertainment.

Where corporate employers provide company shares or share options to employees or their associates the relevant taxable income, if any, must also be reported to the Tax Office.

Research & Development (R&D) Tax Incentive

The R&D Tax Incentive was introduced to encourage companies to engage in research and development by providing a tax offset for eligible R&D activities.

The current tax offset rates and additional tax benefits are as follows:
 

Aggregated
Turnover

(including connected
and affiliated
entities)
R&D Tax
Offset Rate Available
Corporate Tax
Rate (dependent on base rate
entity (BRE) status)
Resulting R&D
Net Tax Benefit
on Eligible R&D Expenditure
Less than $20m
and not controlled by
tax-exempt entity
43.5% (refundable)27.5% (BRE)
30% (non-BRE)
16%
13.5%
$20m or more
or controlled by
tax-exempt entity
38.5% (non-refundable)27.5% (BRE)
30% (non-BRE)
11%
8.5%

 
For eligible R&D entities entitled to the refundable R&D Tax Offset, a cash refund for the entire 43.5% of eligible R&D expenditure is possible, depending on the tax losses available.

For eligible R&D entities entitled to the non-refundable R&D Tax Offset, to the extent that tax payable is reduced to $nil, the remaining portion can be carried forward for use in future income years to offset future tax payable. To claim these offsets in future years, the usual loss recoupment rules must be satisfied.

For eligible R&D expenditure exceeding $100 million, a Tax Offset is only available at the applicable corporate tax rate, resulting in a $nil R&D benefit.

R&D related expenses incurred to an associate should be physically paid before 1 July 2020 to qualify for the current year’s offset.

Lastly, qualifying companies should be registered with AusIndustry on behalf of Innovation Australia within 10 months after year end (i.e. by 30 April 2021 for a 2020 claim by a company with a 30 June year-end).

Proposed changes

On 8 May 2018, the Government announced that they would amend the R&D Tax Incentive, to encourage additional investment in R&D, while also ensuring the integrity and fiscal affordability of the program.

These changes are expected to apply from 1 July 2019, but the enacting legislation has not yet been passed.

If passed as proposed, eligible R&D entities with aggregated turnover of $20m or more, will receive an R&D credit based on a premium (ie net tax benefit) calculated by reference to the proportion or intensity of R&D expenditure for each year as follows:

R&D expenditure as a proportion
of total annual expenditure
R&D premium (calculated as relevant % plus claimant’s company tax rate)
0 to 2%4%
>2% to 5%6.5%
>5% to 10%9%
>10%12.5%

For eligible R&D entities with aggregated turnover below $20m, the R&D offset will be the claimant’s company tax rate plus a 13.5% premium, a decrease from the 16% R&D uplift applying to base rate entities in the 2018/2019 year. Cash refunds will be capped at $4 million per annum. R&D tax offsets which cannot be refunded are to be carried forward as non-refundable R&D tax offsets for use in future income years, with the usual loss recoupment rules needing to be satisfied for use.

The maximum R&D expenditure threshold will be increased from $100 million to $150 million per annum.

In addition, increased resources will be made available to the ATO to ensure compliance with the integrity of the R&D measures.

Individuals with “Non-Commercial” Business Losses

Individuals with annual adjusted taxable incomes (the sum of taxable income, reportable fringe benefits, reportable (ie salary sacrifice) superannuation contributions and net investment losses) exceeding $250,000 are not able to deduct any business losses against their other taxable income.

Other individuals incurring business losses cannot deduct those losses against their other taxable income unless that business satisfies one or more of the following tests:

  • a farmer whose non-primary production income is less than $40,000
  • the assessable income from the activity is at least $20,000 (full year equivalent)
  • the activity has been profitable in at least three of the last five income years
  • the value of real estate used in the business is at least $500,000
  • the value of other business assets is at least $100,000

Thin Capitalisation – Deductibility of Interest Expense and Other Finance Costs

The thin capitalisation rules can reduce debt deductions (ie interest) for taxpayers which: 

  • have significant foreign investments (10% or more of total assets); or   
  • are foreign owned; or 
  • are foreign investors

The measures apply where annual debt deductions exceed $2 million.

Debt deductions are not denied to the extent that the taxpayer satisfies certain debt to equity ratios. For most taxpayers the “safe harbour” tax deductible debt cannot exceed 60% of total assets (ie $10 of gross assets supporting $6 of debt for every $4 of equity). Higher gearing ratios may be permitted under the alternative “arm’s length” debt test. This looks to the hypothetical amount the relevant taxpayer could have borrowed from an unrelated financier without related party guarantees.

The transfer pricing rules may also reduce interest deductions where a taxpayer borrows from offshore related parties on uncommercial terms in relation to the interest rate, the gearing ratio or both.

Taxable Payments Annual Report (TPAR)

If you operate in particular industries, or are a government entity and make payments to contractors principally for labour, you must prepare and lodge a “Taxable Payments Annual Report” (TPAR) with the ATO showing the payments that you have made to each contractor for the year ended 30 June 2019. Contractors can include subcontractors, consultants and independent contractors, whether operating as sole traders, or through companies, partnerships or trusts.

This report should be submitted by 28 August 2020.

For the year ended 30 June 2020, this covers the following industries:

  • building & construction services
  • cleaning services
  • courier services
  • security providers and investigation or surveillance services
  • road freight transport; and
  • information technology services 

Lodgment of a “Not Required to Lodge” report may be available for the above entities where the total payments an entity receives for the above services as part of their business are less than 10% of the entity’s current or projected GST turnover (all above, except building & construction services) or you haven’t paid contractors for the relevant industry service.

PRIVATE COMPANY LOAN ISSUES

Loans to Shareholders and Debt Forgiveness

Loans or payments made by private companies to their shareholders or associates can give rise to “deemed dividends” for income tax purposes (“Division 7A”). These are assessable to the recipient as an unfranked dividend.

No action is required before 30 June 2020 for new loans made since 1 July 2019.

No deemed dividends arise for outstanding loans made in the 2019 and prior years where:

  • the loan was repaid in full by the earlier of the due date for lodging the company’s tax return for the year it was made or the actual date the return was lodged (“the lodgement date”); or
  • the loan is covered by a written loan agreement for either 7 years (as an unsecured loan) or 25 years (where secured over real estate) made before the lodgement date and the required minimum interest charges and principal repayments are made by 30 June each year commencing with the year after the year in which the loan was made; or   
  • the company had accumulated accounting losses and did not have a “distributable surplus” as defined in the 1936 Tax Act in the year the loan was made (but note that a deemed dividend can arise when loans are forgiven in a subsequent year if there is a distributable surplus at the end of that year)

Proposed significant changes to Division 7A had been delayed until a 1 July 2020 start date. The changes are not yet legislated and we await further announcements by the government as to whether a new delayed start date will apply.

Deemed Dividends and Provision of Company Property

The private company loan rules extend to situations where a private company’s property (boats, holiday houses etc) is available for the private use of shareholders or their associates and less than a market rental is charged. Where these rules apply, we recommend that a register is kept of the dates company property was either used for private purposes or was available for private use by the shareholders.

Interest Free Credit Loans to Private Companies

Loans to companies that are the economic equivalent of shares can be treated as equity for tax purposes. This can have unintended tax consequences.

Interest free loans to private companies will continue to be treated as debt for tax purposes where:

  • the loan is from a connected entity; and
  • the loan does not have a fixed term; and
  • the loan is repayable on demand or at the end of a reasonable period or on the death of the individual who made the loan; and
  • the company’s GST turnover is under $20 million

Ideally there would be some documentation confirming the terms of the loan.

DISCRETIONARY TRUST DISTRIBUTION ISSUES

Discretionary Trust Distributions

Trustees of discretionary (ie non-fixed) trusts must resolve and document their decision on how to distribute the current year’s trust income including any realised capital gains by 30 June 2020 or such earlier default distribution date as is specified in the trust deed. The tax laws allow trustees to “stream” capital gains and/or franked dividend income to particular beneficiaries where permitted by the terms of the trust deed. Other classes of income such as interest are blended and cannot be streamed.

In order for distribution resolutions to be as tax effective as possible, trustees should have a clear understanding of the trust’s likely accounting and taxable income (including capital gains) and expenses of the trust and of potential beneficiaries for this current financial year.

Where we are aware that you control a discretionary trust we will be contacting you before 30 June to discuss the proposed distributions.

Beneficiary Tax File Numbers

Where current year trust distributions are contemplated to adult taxpayers who have not previously provided their Tax File Numbers (“TFNs”) to the trustee, those TFN’s must be provided to the trustees by 30 June 2020 and reported by Trustees to the Australian Taxation Office (“ATO”) by 31 July 2020.  Where a trustee does not have the TFN of an adult beneficiary, the trustee must withhold 47% of any trust distribution to that adult for the current year and remit that amount to the ATO by 30 September 2020.

Trust Losses/Family Trust Elections

Where a discretionary trust or other trust that does not qualify as a “fixed” trust incurs an income tax loss or bad debt it may need to make a Family Trust Election or satisfy an alternative test  in order to preserve the benefit of those deductions into future years. A Family Trust Election restricts the class of potential beneficiaries that can receive trust distributions without the trust being subject to the 47% Family Trust Distribution Tax.

Family trust elections may also be required where a discretionary trust has substantial franked dividend income or where it has a significant interest in a private company that has tax loss and/or bad debt deductions.

Family trust elections raise a number of complex issues that are best discussed with us.

Unpaid 30 June 2019 Trust Distributions to Private Companies

Any outstanding (ie unpaid) trust distributions made to corporate beneficiaries during the 30 June 2019 tax year will need to be addressed before the due date for lodging the company’s 30 June 2020 income tax return (normally 15 May 2021 or actual lodgement date if earlier).

Making a cash payment to the company is the most straightforward way to clear the unpaid distributions.

Other options are available to manage the unpaid amount over a period of time. The most common involves documenting the transaction by way of a written Division 7A private company loan agreement repaid over 7 years on a principal and interest basis for unsecured loans (or 25 years when secured over real estate) with interest commencing from 1 July 2020. More complex strategies involving sub-trusts are possible.

Disclaimer
The material contained in this newsletter is in the nature of general comment and information only and neither purports, nor is intended, to be advice on any particular matter. Readers should not act or rely upon any matter or information contained in or implied by this newsletter without taking appropriate professional advice.