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High Court rejects attempt to disclaim interest in trust distribution

The High Court has rejected a taxpayer’s attempt to disclaim an interest in trust income that arose as a result of a default beneficiary clause being triggered.

Facts

The taxpayer, Ms Natalie Carter, was one of five default beneficiaries of the Whitby Trust, a discretionary trust.

For the 2014 income year the trustee had failed to appoint or accumulate any of the income of the Trust.

The Trust Deed contained a default beneficiary clause, nominating Ms Carter and four other beneficiaries, as the default beneficiaries, in the event that the trustee had failed to allocate trust income for the benefit of beneficiaries by 30 June of a particular year.

The ATO issued each of Ms Carter and the four other default beneficiaries with an assessment for one-fifth of the income of the Whitby Trust for the 2014 income year on October 2015.

This was done on the basis that they were “presently entitled” to that income within the meaning of S.97(1) of the Income Tax Assessment Act 1936.

An initial unsuccessful attempt was made by the default beneficiaries to disclaim their entitlement to default distributions in November 2015.

A further attempt by the default beneficiaries to disclaim their interest in trust income for the 2014 income year was made in September 2016 in what was referred to as the “Third Disclaimers”.

The Administrative Appeals Tribunal held that the Third Disclaimers were ineffective whereas the Full Federal Court found in the taxpayers’ favour that they were effective.

The High Court was then asked to consider the legal status of the Third Disclaimers.

Decision

It was the unanimous decision of the High Court that the Third Disclaimers were ineffective.

The High Court carefully analysed the words of S.97(1).

In particular, the phrase “is presently entitled to a share of the income of the trust estate” in S.97(1) is expressed in the present tense.

The plurality found that expression “is directed to the position existing immediately before the end of the income year for the stated purpose of identifying the beneficiaries who are to be assessed with the income of the trust – namely, those beneficiaries of the trust who, as well as having an interest in the income of the trust which is vested both in interest and in possession, have a present legal right to demand and receive payment of the income.”

The High Court took the view that the question of the “present entitlement” of a beneficiary to income of a trust must be tested and examined “at the close of the taxation year”, not some reasonable period of time after the end of the taxation year.

Accordingly, Ms Carter and the other four beneficiaries had been appropriately assessed by the ATO under S.97(1) given their status as default beneficiaries under the Trust Deed.

For the sake of completeness, the High Court also rejected the taxpayers’ argument that a beneficiary of a discretionary trust, with reference to events that may occur in a “reasonable period” after the end of an income year, can trigger an event that would disentitle the beneficiary to a distribution.

Editor:  This decision is significant, because it backs the proposition that disclaimers of trust income cannot be effective if they occur after the end of the income year that gave rise to a present entitlement. 

It will be interesting to see in any subsequent Decision Impact Statement how the ATO intends to apply the decision in Carter’s case.

As we head towards the end of another income year, this case serves as a timely reminder to ensure for discretionary trusts, that steps are taken before the end of the income year to effectively distribute trust income.

This is done to avoid the operation of default beneficiary clauses, or the situation where no beneficiary is presently entitled to trust income and the trustee is assessed at the highest marginal rate.

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Disclosure of business tax debts

The ATO is in the process of writing to taxpayers that may be eligible to have their tax debts disclosed to credit reporting bureaus (‘CRBs’).

The ATO can potentially report outstanding tax debts to a CRB where the following criteria are satisfied:

  • The taxpayer has an Australian business number and is not an excluded entity;
  • The taxpayer has one or more tax debts and at least $100,000 is overdue by more than 90 days;
  • The taxpayer is not engaging with the ATO to manage their tax debt; and
  • The taxpayer does not have an active complaint with the Inspector-General of Taxation about the ATO’s intent to report its tax debt information.

Excluded entities are a deductible gift recipient, a complying superannuation fund, a registered charity and a government entity.

The purpose of this letter from the ATO is to raise awareness of the actions that the ATO can now take under the Disclosure of Business Tax Debts measure.

The letter will be sent to all taxpayers with business tax debts that currently meet the criteria (discussed above) for disclosure.

This letter from the ATO provides business taxpayers with information on how to effectively engage with the ATO to manage their tax debt.

Taxpayers can avoid disclosure to a CRB by making payment in full or negotiating a payment plan.

If an eligible taxpayer does not take steps to actively manage their debt, they will remain eligible for disclosure.

Before the ATO takes any final action to disclose a tax debt, it will issue the taxpayer with a formal Intent to Disclose Notice.

If a taxpayer receives an Intent Notice, asking them to ‘Act now or your tax debt will be reported to credit reporting bureaus’, the taxpayer or their tax agent must contact the ATO within 28 days of receiving the notice to avoid the debt being reported.

It is crucial for taxpayers to engage with the ATO early before their debts become unmanageable.

Editor:  If the ATO reports a taxpayer that has an outstanding debt to a CRB, this can have a negative impact on the client’s credit rating. 

This in turn may affect the client’s ability to borrow from banks and other financial institutions.

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No reduction in the Private Health Insurance rebate as of 1 April 2022

An event that we have become accustomed to every 1 April, is that the amount of the Private Health Insurance (‘PHI’) rebate decreases.

The Australian Government rebate on PHI is annually indexed on 1 April by a Rebate Adjustment Factor (‘RAF’) representing the difference between the Consumer Price Index and the industry weighted average increase in premiums.

The RAF for 2022 has been calculated as 1.

This means there will be no changes to the PHI rebate on 1 April 2022.

Editor:  With inflation at levels Australians have been unaccustomed to over the last 20 years, at least there is one very small piece of good news.

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Changes to super guarantee

From 1 July 2022, two important super guarantee (SG) changes will apply to your business. These are:

  • the rate of SG is increasing from 10% to 10.5%
  • the $450 per month eligibility threshold for when SG is paid is being removed.

 

What this means for you

These changes mean that from 1 July 2022:

  • you’ll need to make SG contributions at the new rate of 10.5%
  • employees can be eligible for SG, regardless of how much they earn. You may have to pay SG for the first time for some or all of your employees.

The ATO is working with digital service providers (DSPs) to make sure payroll software is updated in time. If you use a tax agent, they’ll also be aware of these changes and able to assist you.
ATO updated online tools and calculators will be available to help you from 1 July 2022.

What you need to do

Check that your software is updated to correctly calculate your employees’ SG entitlement from 1 July 2022.

If the removal of the $450 threshold means you’ll be paying SG for one or more employees for the first time, you’ll need to give them a Standard Choice Form.

If your employee does not provide you with a choice of super fund, review the Stapled Super Fund information on our website for guidance on what you need to do next. A stapled super fund is an existing super account linked to an individual employee.

 

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Penalties for overdue TPAR

The Taxable payments annual report (‘TPAR’) must be lodged by 28 August each year. Taxpayers who operate in certain industries and that make payments to contractors may need to report these payments in a TPAR.

Affected industries where taxpayers may have an obligation to lodge a TPAR are:

  •  Cleaning services;
  •  Building and construction services;
  •  Road freight;
  •  Courier services;
  •  Information technology services;
  •  Security, investigation or surveillance services.

 

From 23 March 2022, the ATO will apply failure to lodge penalties to those who:

  •  did not lodge their 2021 or prior year TPAR;
  •  have already been sent three non-lodgment letters about their overdue TPAR;
  •  do not respond to an ATO follow-up phone call about their overdue TPAR.

In the coming weeks the ATO may be phoning tax agents (or taxpayers directly) about their overdue TPAR, to follow up the non-lodgment letters that have been sent.

Editor: Should you have any questions (or require any assistance) about any of the issues raised in this update, please feel free to contact our office.

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Re-contribution of COVID-19 early release super amounts

Individuals can now re-contribute amounts they withdrew under the COVID-19 early release of super program without the re-contribution counting towards their non-concessional contributions cap.

These contributions can be made between 1 July 2021 and 30 June 2030.

Individuals can make COVID-19 re-contribution amounts to any fund of their choice where the funds’ rules allow.

COVID-19 re-contribution amounts are reported as personal contributions. If the fund member is found to be ineligible to make the re-contribution (for example, the fund member may be required to satisfy the work test and does not do so at the time of a re-contribution) it may result in that member exceeding their non-concessional contributions cap.

It should be noted that once an amount originally withdrawn under the COVID-19 early release of super program has been re-contributed into a superannuation fund, it will not be able to be released from that fund until the fund member satisfies a condition of release – such as obtaining the age of 65 or having met their preservation age and they have ‘retired’.

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JobMaker Year 2: adjusting baseline headcount

If you have been claiming the JobMaker Hiring Credit, please be aware that the ATO will now calculate an adjusted baseline headcount for the claim.

The ATO will amend the prefill in the claim form based on information provided in earlier claims.

The ATO does this each period by calculating the greatest headcount increase that occurred in a period that began 12 months or more before the current claim period.

The ATO then adds that increase to the baseline headcount.

This adjustment will happen because eligible businesses can only claim the JobMaker Hiring Credit for up to a year for each additional job they create.

The baseline headcount is an integrity measure designed to ensure that where an employer is claiming a JobMaker Hiring Credit for a new employee aged between 16-35, that they have also increased their overall number of employees.

This is designed to prevent employers terminating the services of current employees and then replacing them with employees aged 16-35.

Broadly speaking, to qualify for the JobMaker Hiring Credit an employer needs to have not only employed an eligible individual but to have also increased their overall employee headcount.

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Cents per kilometre deduction for car expenses – 2023 income year

The ATO has proposed for individual taxpayers that use the cents per kilometre method when calculating tax deductions for their work-related car expenses, that the rate per kilometre for the income year starting 1 July 2022 (the 2023 income year) will be 75 cents per kilometre.

This is an increase from the 72 cents rate applicable for both the 2021 and 2022 income years.

A reminder that the ability to claim a deduction under the cents per kilometre method is subject to a cap of 5,000 business kilometres annually.

Individual taxpayers will claim deductions for work-related car expenses (where eligible) under one of two alternative methods: the log-book method or the cents per kilometre method.

Many taxpayers find that they are not able to use the log-book method as they have not maintained a valid 12-week logbook in the last five years.

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Reminder of March 2022 Quarter Superannuation Guarantee (‘SG’)

Employers are reminded that their SG obligation for the 1 January 2022 to 31 March 2022 quarter is due by 28 April 2022.

An advance warning is also provided to employers that the compulsory 10% SG rate is going to increase to 10.5% from the period 1 July 2022 to 30 June 2023.

So now might be a good time to ensure your payroll systems and SG calculators are updated by the start of the next income year.

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2022-2023 Budget Measures that are now law

Low and Middle Income Tax Offset

A measure that will no doubt be beneficial for individual taxpayers is the increase in the Low and Middle Income Tax Offset (‘LMITO’) for the 2022 income year by $420.  The LMITO is a tax offset which reduces an individual taxpayer’s tax liability.

This means that the maximum amount of the LMITO for the 2022 income year will now be $1,500 (up from $1,080 for the 2021 income year).

However, the LMITO will not be extended to the 2023 income year.

Reduction in Fuel Excise

Fuel excise on petrol and diesel will be reduced by 50% (a reduction of 22.1 cents per litre) from 30 March 2022 to 28 September 2022.

This temporary reduction in the fuel excise is to soften the impact of increased petrol and diesel prices that have been triggered by Russia’s invasion of Ukraine.

Tax deductions for work-related COVID-19 tests

Last month’s edition of Practice Update discussed a proposal for COVID-19 tests, to be both:

  •    tax-deductible; and
  •    exempt from FBT;

broadly where they are purchased for work-related purposes.

This proposed legislative change is now law with effect from 1 July 2021.