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Taxation : Small Business CGT Concessions

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Elizabeth is a foreign resident (non-resident of Australia for tax purposes) who worked in Australia for four months during the year ended 30 June 2013 and received a salary of $20,000 for this work. She also worked in France and earned $27,000 in salary income. Elizabeth also owns a rental property in France and she received $7,000 in rental income during the year. In addition Elizabeth owns shares in Telstra Corporation Australia Ltd and she received a cash dividend of $500 from Telstra during the year. Telstra’s head office is in Sydney Australia. Based on these receipts what amount will be assessable to Elizabeth as income in Australia for the year ended 30 June 2013?
 
 

Answer:

Issue: 
  • Will Kate would be held as Australian resident while she was away from Australian when she was in Fiji for three-year time period?
  • Will her part time earnings from teachings would be included in assessable income?
  1. “Subsection 6 (1) of the ITAA 1936”
  2. “FCT v Applegate (1979)”
  3. “FCT v Jenkins (1982)”
  4. “Section 6-5 of the ITAA 1997”

The situation of Kate defines that she was born in Australia and carried the profession of teacher in Toowoomba, following the resignation from her employment she moved with her husband in Fiji. “Subsection 6 (1) of the ITAA 1936” ascertains the domicile of a person along with the intention of where a person chooses to make their home indeterminately (Barkoczy 2014). As held in “FCT v Applegate (1979)” it is necessary to consider the intent of an individual where he or she decides to make their home indeterminately.

The situation of Kate outlines that her permanent place of abode is outside Australian with no intent of making her home out of Australia. The court in “FCT v Jenkins (1982)” defined that to determine a person permanent place of abode the original length of stay out of Australia (Brokelind 2014). Likewise, referring to the view of commissioner Kate has maintained her bank account in Australia and derived interest and rental income. She maintained her domicile in Australian and would be held as Australian resident in respect of extended decision under “subsection 6 (1) of the ITAA 1936”. Additionally under section 6-5 of the ITAA 1997 her salary from the part-time teachings will be included in her assessable income.

Kate will be held as “Resident of Australia” with respect to “subsection 6 (1)” because her domicile is in Australia with no intention of taking up the overseas residency.

  • Will the value of free accommodation provided to Bernie from his clients will be in his assessable as income? 
  1. “Tennant v Smith (1892)”
  2. “Federal Commissioner of Taxation v Cooke and Sherden (1980)”
  3. “Section 21 of the ITAA 1936”

An item having a character of income which is derived would be considered as the income based on the amount of its realisable value. The court of law in “Tennant v Smith (1892)” stated that the value of free accommodation given to bank employee does not constitute income (Coleman and Sadiq 2013). As evident in the situation of Bernie where one of his client named Paul instead of paying for the delivery service, offered Bernie with free accommodations in his rental property for six months.

Citing the reference of “Federal Commissioner of Taxation v Cooke and Sherden (1980)” the federal court in its verdict stated that the value of free overseas holidays that is provided to the retailers based on the sales incentives scheme would not be considered as income. However, in case of Bernie “section 21A of the ITAA 1936” would be bought into action as the value of benefit received is a non-cash business benefits and will be included in his assessable income (Grange et al. 2014).

Noting the legislative response of “section 21A of the ITAA 1936” the non-cash business benefits received by Bernie will be considered in taxable income in respect of arm’s length and will be included in assessable income.
  • Will the compensation payment received by the Melanie from her termination contract would be included in the taxable income under section 6-5 of the ITAA 1997?
  1. “FCT v Californian Oil Products (1934)”  
  2. “Section 6-5 of the ITAA 1997”

As stated under “section 6-5 of the ITAA 1997” income generated from the ordinary concept would be considered as the taxable income (James 2014). The situation of Melanie provides that she carried on the business of cleaning and generated an income of $500,000. Nevertheless, Melanie biggest customer that accounted 95% of the sales undertook the decision of terminating the contract and paid Melanie with a compensation of $200,000 for termination of contract. It is worth mentioning that the agreement represented whole of the business which the taxpayer carried on.

Citing the reference of “FCT v Californian Oil Products (1934)” the court of law stated that the termination payment constituted capital account (Kenny 2013). Hence the amount received by Bernie is identical to the situation of the above stated case and therefore it would not be considered as assessable income. Melanie upon agreeing to accept the termination payment lost the right of giving service to other party and constituted that she is out of business (Krever 2013). Therefore, the sum received by Melanie is a capital receipt.  

The compensation payment received following the termination of contract represented the loss of service with loss of making profit as well. Hence the compensation receipts will be considered as capital receipts and would not be considered assessable income.

CGT Small Business Concessions

The current study is based towards the advance viewers with discussion on the small business capital gains tax concessions. The discussion would include the critical discussion of the overall policy objectives of the Small Business CGT concessions (Morgan, Mortimer and Pinto 2013). Additionally, the report will be highlighting whether the current regimes that has been stated in the Small Business CGT concessions are sufficient to meet the current objectives or they require reformation with further amendments.

The small business concession that are contained under the Division 150 of the ITAA 1997 aims at improving the capital gains tax relief that are obtainable to the small business in order to help them in funding of the business expansion and providing for the retirement as well (Sadiq et al. 2014). Ever since the institution of the concessions in small business the theme has been the matter of main evaluations by the taxation board and subsequently law making amendments has also been made. Even though the reviews have been sought to make the operations easy for the CGT concession in small business, though the taxpayers and the practitioners are presently facing with the countless and definitional based rules that are challenging to implement and interpret.

Small business CGT concessions: 

The present CGT concessions in small business were adopted to streamline and widen the concessions of CGT that are accessible to the small business. The policy aims at identifying the capital proceeds originating from the sale of CGT assets that are held by the taxpayers in executing their business activities (Woellner 2013). The businesses were regularly dependent upon by the small and medium size business to either fund the business or their retirement. Subdivision 152-A defines the necessary criteria for the CGT concessions of small business. There are some concessions that requires specific conditions to be met.

There are generally four main concessions that are obtainable to the small business taxpayers;

Under Subdivision 152-B small business are provided 15-year exemptions

With respect to subdivision 152-D a 50% reduction in active asset is provided to the small business taxpayers

Under subdivision 152-D taxpayers are provided with retirement concessions

The subdivision 152-E defines that the small business are provided with the roll over relief.

An important consideration of the CGT concessions of small business is that a capital gain would be considered for 15-year exemption is overlooked completely and is applicable in urgency basis to the other concession (Woellner et al. 2013).

Policy objectives of Small Business CGT Concessions:

The conditions include that there should be a CGT concession in respect to the CGT assets during the tax year. The CGT event must result in capital gains that would be considered for assessment under the general provisions of the CGT (Geljic, Koustas and Burke 2016). Another policy objective of the CGT concessions is that the tax payer must satisfy either the maximum net asset value conditions or should meet the test of small business entity. The subdivision 152-A sets out the conditions that the CGT asset meet the test of active asset test.     

After the adoption of tax laws amendments act 2009, admission of CGT concession for small business was extended upon the introduction of the new business rules (West and Lam 2016). The taxpayers that owns the CGT asset for carrying on of the business activities by the associate or the associated unit of the taxpayer might be able to gain an access on the CGT concessions given that the business meets the small business enterprise test. Furthermore, one or more partners that owns the CGT asset for carrying on the partnership business should meet the test of small business enterprise.

 

Significance relating to Small Business CGT Concessions: 

As stated in the above explanation the study focuses on criteria to gain the access to the concessions in small business CGT that are stated under the “Subdivision 152-A”. When it is noticed that the taxpayer meets the conditions the subdivision of 152-A might allow the access to the CGT relief to reduce the capital gains is lowered by one or more of the four concessions (Yuan 2017). Notably, CGT is regarded as the most noteworthy possible advantage to those that satisfies the necessities. Nevertheless, the CGT test recently has attracted wide range of disapproval relating to difficulty and apparent absence of equality.

According to Evans et al. (2014) in current years the sector of small business is of vital importance to Australia. Governments are intensely helping the small business to flourish by providing taxation incentives. Survey conducted by Sanderson (2015) stated that the taxpayer in relation to the CGT concessions for small business and assessed the effect of related cost of compliance. The researchers have founded that a large number of respondents have bought forward their agreement that it is difficult to understand the CGT concessions. Furthermore, the ATO has agreeably acknowledged that the interpretation and problems of compliance is related to the small business CGT.

The problems of agreement and supervision that are related with the CGT concessions of small business are acknowledged universally. Nevertheless, they cannot be regarded as the problems that can be dismissed but also significantly contributed to the Australian economy strength (Hicks and Tran 2014). These assist the taxpayers of the small business to prosper in the small business and deliver for their superannuation. It would be of substantial advantage for the small business if an improvement to the legislation is made in order to reduce the cost that are related with the compliance and administration. Several parties have documented their response that the CGT concessions of small business are extremely complex.

There are speculations that the provision of the CGT is not attaining the desired outcomes. According to Chung (2016) there is a wide range of acknowledgement that the load of corporate levies generally falls largely on the small businesses and this ultimately depresses reserves and investment with damaging impacts to the entire economy of Australia. Widespread attention is directed towards the specific problems faced by the tax consultants and taxpayers experienced in dealing with Division 152 and demanded for reformation. 

 

Recent reformation:

The division 152 was created with the objective of reducing the compliance cost. Recent reformation includes rationalisation of small business CGT Concessions and provider higher amount of flexibility in measuring the concession (Ma 2015). The Tax Laws Amendment Act was enacted in 2007. These amendments were completely concessional in character and targets are improving the access to the concessions. The recent reformations in the CGT measures have placed emphasis on the overall objective of economic growth. The reformation is in agreement with the economic case of promoting investment by small business. By offering an attractive environment of tax, the concession promotes investment and reinvestment by the persons as this would help in bolstering the overall growth of economy.

The Tax Laws Amendment Act 2007 introduced a 20% significant individual test that enables the taxpayers for a period of eight years to directly gain access of the CGT concession stakeholders in lieu of previously controlling 50% individual test. Under this test only two individuals could be directly benefit from the CGT concessions that are in relation to the sale of directly or held shares or trusts interest (Kenny and Blissenden 2014). Introducing a supplementary test permits a significant individual to indirectly gain the access of concessions where there are CGT concession stakeholders in the organization or trust. Importantly these stakeholders possess at least 90% participations in the small business that holds share in business or interest in trust.

The reformations made allows an affiliated and associated business to include the negative values of the net assets in computing the maximum net asset value test (Long, Campbell and Kelshaw 2016). The recent reformation that is made restricts the partnership firms from including the net worth of the CGT assets under the test of net asset value where it is noticed that partnership is an associated company. This is because the taxpayers are granted to receive a minimum of 40% of the partnership net income.

The recent reformation states that restricting the addition of the market value of a person’s residence in the computation of maximum net asset test value up to the extent that it is employed with the objective of making income (Somers and Eynaud 2015). Reformation in the active asset helps in making sure that the asset can still be considered as the active asset where the business creases is operations before twelve months of the CGT event. The recent reformation in the CGT asset has simplified the exemption relating to retirement where the company or the trust claimed the exemption since it is not obligatory that a CGT concession stakeholders should retire to access the exemption. This is because the exempted sum will be considered as the employment termination payment.

The reformation made to the CGT concession broadens the small business rollover relief as this allows the taxpayer to select a rollover of the capital gain prior to acquiring the replacement of the active asset or making a capital improvement to the asset (Stewart and Thomas 2016). There is an increased flexibility of the small business rollover by making sure that it is available when the part of the capital gains is rolled over. The recent reformation made also extends the small business rollover as it enables its applications or a portion of the deferred gain in improving the existing active asset. Reformation in the CGT concession ensures that the lawful representative of the deceased or the beneficiary of the deceased estate can access the concessions upon the occurrence of the CGT event inside the span of two years of the deceased death.

 

Recommended further amendments in Small Business CGT Concessions: 

There has long been identified that the compliance cost imposes a higher burden on the small business. It is not surprising that reduction in the compliance cost as the purpose for introducing the Division 152 (Trad and Freudenberg 2017). The objective of reducing the cost of compliance can be viewed as the most noble and undouble the politically popular means of further recommendations to the CGT concessions of small business. The so called scheme of simplified taxation system for the small business is believed to have failed considerably in this respect and doubts have been raised that whether the division 152 is any better on this ground. Reduction in the compliance costs and capital gains tax can be considered equally exclusive.

On the other hand, one of the most dubious and impleaded aspects of the concession of small business concession is the taxpayer’s capacity to meet the $6 million maximum be asset value test. In real scenario several small business taxpayers whose eligibility in satisfying the criteria of $6 million maximum net asset value test fail to take into the account the net value of the CGT assets of the associated entities (Somers and Eynaud 2015). These small entities erroneously omit the pre-CGT acquired assets or post acquisition of the asset namely the depreciating assets or trading stocks that does not produce capital gains but however must be accounted in the computation. It is recommended that the individual $6 million maximum net asset value test must be substituted by some alternative unprejudiced eligibility test. This can be done through the revised aggregate turnover test that can include the concession to progressively reduce the above stated threshold limit.              

In terms of the equity and criteria of efficiency there is a reasonable grounds for extending the concession to the small business. In respect of fairness the rollover respite must be made accessible for the purpose of spontaneous disposals. This includes obligatory acquisition, corporation takeover and destruction of assets through natural disaster (Ma 2015). Based on the grounds of competence, recommendations is made for the rearrangement of capital gain where the taxpayers are rolling down their profits of the sale of an asset to the bigger asset so that a business can grow. Additionally a case must be sought for rollover of CGT asset or deferral whenever there is a lawful alteration in the ownership nonetheless no actual monetary variation such as the asset is being transported inside the solely owned business group.

The concession for rollover and the retirement concession are regarded vital to the small business. To make the active asset test easy to understand it is necessary to include most of the commercial CGT assets (Chung 2016). With that being stated, there is a need for removal of 50% small business reduction and 15-year exemption must be taken into account. Rationalising the small business CGT concessions might help in improving the fairness, competence and straightforwardness.

 

Conclusion: 

In agreement with the strong influence made by the small business CGT in the economy of Australia, the provision of reasonable concession in this sector would help in thriving and promoting the broader community. The capital requirement of the small business can necessitate an owner to make a large contribution of cash so that the business remains solvent. The small business CGT concession has always been considered as the generous and the recent reformation in the rules has made the rule impressively substantial.

The current reformation has widened the taxpayer’s scope regarding the eligibility for concession and there is a general perception that no taxpayers suffers from the changes. However, the amendments that has been made recently have increased the small business CGT concessions for the CGT assets that are held passively. The alternative usage of turnover test is more likely to raise the number of taxpayers that are eligible for concessions and may represent that the capital gain that are up to $16 million can be lowered to nil if the CGT asset concession shareholders are entitled for reduction. Despite the recent changes there is a need for equity and efficiency in the small business CGT as the active assets test requires to be reduced in order to promote more equal results.

 

Reference List:

Barkoczy, S. 2014. Foundations of taxation law.

Brokelind, C. 2014. Principles of law: function, status and impact in EU tax law. Amsterdam: IBFD.

Chung, E., 2016. Tax tips on selling your real estate agency business. REIQ Journal, (Feb 2016), p.34.

Coleman, C. and Sadiq, K. 2013. Principles of taxation law.

Evans, C., Hansford, A., Hasseldine, J., Lignier, P., Smulders, S. and Vaillancourt, F., 2014. Small business and tax compliance costs: A cross-country study of managerial benefits and tax concessions. eJournal of Tax Research, 12(2), p.453.

Geljic, S., Koustas, H. and Burke, D., 2016. Small business restructure roll-over. Taxation in Australia, 50(7), p.404.

Grange, J., Jover-Ledesma, G. and Maydew, G. 2014.  principles of business taxation.

Hicks, A. and Tran, A., 2014. Small business concessions. Taxation in Australia, 48(7), p.367.

James, M. 2014. Taxation of small businesses.

Kenny, P. 2013. Australian tax 2013. Chatswood, N.S.W.: LexisNexis Butterworths.

Kenny, P. and Blissenden, M., 2014. The $6 million net asset value test for small business. Australian Tax Law Bulletin, 1(3), pp.58-63.

Krever, R. 2013. Australian taxation law cases 2013. Pyrmont, N.S.W.: Thomson Reuters.

Long, B., Campbell, J. and Kelshaw, C., 2016. The justice lens on taxation policy in Australia. St Mark's Review, (235), p.94.

Ma, D., 2015. Small business tax compliance burden: what can be done to level the playing field.

Morgan, A., Mortimer, C. and Pinto, D. 2013. A practical introduction to Australian taxation law. North Ryde [N.S.W.]: CCH Australia.

Sadiq, K., Coleman, C., Hanegbi, R., Jogarajan, S., Krever, R., Obst, W. and Ting, A. 2014. Principles of taxation law.

Sanderson, J., 2015. CGT small business concessions and superannuation. SMSF Guide: Current Issues and Strategies for the Self-Managed Superannuation Funds Adviser, p.183.

Somers, R. and Eynaud, A., 2015. A matter of trusts: The ATO's proposed treatment of unpaid present entitlements: Part 2. Taxation in Australia, 50(3), p.147.

Stewart, M. and Thomas, S., 2016. Entrepreneurship and Income Tax: What was the Past Like–and Travelling into the Future.

Trad, B. and Freudenberg, B., 2017. All Things Being Equal: Small Business Structure Choice.

West, M. and Lam, D., 2016. Small business restructure roll-over-Opportunities and traps. Taxation in Australia, 50(9), p.521.

Woellner, R. 2013. Australian taxation law select 2013. North Ryde, N.S.W.: CCH Australia.

Woellner, R., Barkoczy, S., Murphy, S., Evans, C. and Pinto, D. 2014. Australian taxation law.

Yuan, H., 2017. Review of structures for SMEs. Taxation in Australia, 52(6), p.302.

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