Increased costs for foreign property investors will aim to improve the availability and affordability of homes for Australians. Foreign investors will face higher taxes on existing properties meanwhile the Federal Government will incentivise ‘Build-to-Rent’ projects by setting fees at the lowest commercial rate.
On Sunday 10 December, the government announced property tax changes to penalise overseas investors buying homes which are left vacant as well as cutting tax for Build-to-Rent investors. The reform is a bid to increase housing supply, however the effectiveness of these measures to address the broader housing crisis remains open to debate.
Increased costs for foreign buyers
From 2024, foreign investors purchasing established Australian homes will face tripled application fees.
Currently, the application fee charged to foreign investors for buying established homes in Australia is calculated on the property’s value. For instance, properties priced between $1m and $2 m incur an application fee of $28,200. This rises to a maximum of $1,119,100 for residential acquisitions of more than $40 million.
Additionally, if these properties are left vacant, the investors will incur an equivalent amount as a vacancy fee.
The tripling of application fee effectively is a six-fold increase in total fees (application plus vacancy fees) for properties bought since 9 May 2017. A vacant property costing between $1m to $2m will have an application fee of $84,600 and an annual vacancy fee of $84,600.
The new measures specifically target established dwellings, encouraging foreign investors to focus on new housing developments. This shift is intended to stimulate the construction sector, creating jobs and contributing to economic growth.
Incentivising ‘Build-to-Rent’ projects
To promote investment in new housing stock, the government is reducing application fees for Build-to-Rent projects. From 14 December 2023, the application fees for Build-to-Rent projects will be set at the lowest commercial rate – irrespective of the nature of the land involved. This initiative aims to make Australia’s foreign investment framework more consistent and attractive for long-term rental housing developments.
However, it’s important to note that this is in contrast with the proposed Federal thin capitalisation changes. Thin capitalisation involves tax reforms to ensure multinational companies pay their fair share, focusing on entities funded by high levels of debt over equity. For the latest update on the proposed changes, we have recapped the Thin Capitalisation rules.
Enhanced compliance measures
To strengthen the enforcement of its new property investment rules, the government is significantly increasing funding for the ATO. This aims to ensure strict adherence to the new regulations by foreign investors. A key regulation is the requirement for foreign nationals to sell their Australian properties upon leaving the country unless they have secured permanent residency.
This commitment to enhanced enforcement goes beyond merely introducing new rules; it reflects a concerted effort to effectively monitor and enforce compliance. Foreign nationals are typically barred from purchasing existing properties. This approach underscores the government’s dedication to addressing the complexities of the housing market and ensuring the integrity of its foreign investment framework.
The new foreign investment rules primarily impacts foreign investors, with increased fees and stricter compliance requirements. The construction industry may see growth from incentivised new housing projects. Australian residents, particularly those seeking affordable housing, could benefit from these changes. Real estate developers involved in Build-to-Rent projects are likely to gain from lower fees, encouraging investment in this sector. The repercussions of these changes are thus widespread, affecting various stakeholders in the property market.
Get in touch with SW
Get in touch with our property experts to learn more about how these new regulations affect you.
In light of these proposed changes, we encourage all stakeholders in the Australian property market to stay informed and actively engage with the evolving landscape. For further updates, insights, and guidance on navigating these new regulations, be sure to follow us on LinkedIn.
Contributors
With the festive season in full swing, businesses are celebrating their achievements and expressing appreciation for their employees. Ensure you consider the Fringe Benefits Tax (FBT) effects to prevent unexpected FBT costs.
Christmas celebrations are a wonderful way to end the calendar year, reflect and celebrate with your team. Find out if your Christmas events and gifts may be subject to FBT. While your staff enjoy the party, make sure your festive activities make sure you aware of tax implications.
Christmas events
Food and drinks provided at Christmas events could fall into the entertainment benefit category which may attract FBT based on several factors. These include:
- Location of the Party: Whether it is held on-site or off-site.
- Timing of the Party: If it’s during normal business hours or outside these hours.
- Cost Per Head: The total expenditure per attendee.
- Types of Attendees: Whether only employees, clients, or family members are present.
Parties held on business premises during ordinary hours of work
If your Christmas party is held on the business premises during a normal working day, no FBT is payable for food and drinks. This constitutes an exempt property benefit, rendering the entire cost of the party FBT exempt.
However, this concession applies exclusively to food and drink provided to employees. If food and drinks are provided to an employee’s associate (like family members), this portion will not be exempt and may attract FBT.
This exemption can only apply to property consumed on premises and other types of benefits may be subject to FBT (e.g. it will not apply to the cost of performers).
Parties not held on business premises or outside ordinary hours of work
For parties held off-site (such as in a restaurant) or outside regular business hours, the minor benefit exemption might apply.
To be eligible for this exemption, broadly the cost per person (inclusive of GST) must be less than $300, and the benefit should be provided on an irregular and infrequent basis.
Income tax-exempt entities – special considerations
Entities like government departments, universities, and some schools, which are exempt from Income Tax, face more stringent FBT rules for entertainment as the exemptions described above (i.e. exempt property benefit and minor benefits exemptions) are not available. For these organisations, the entire cost of food and drinks will attract FBT unless a particular exclusion applies such as:
- it qualifies as sustenance
- light refreshments that is incidental to the provision of entertainment to outsiders or
- it is provided as part of your hospitality business.
In addition, income tax exempt entities may utilise other concessions such as the 50/50 method to reduce the overall FBT cost.
Restrictions on concessions for tax exempt body entertainment benefits apply only to meal entertainment. Therefore, it becomes more important to determine which benefits should be considered entertainment, and/or what proportions may be subject to reportable fringe benefit rules (i.e. reportable on employee Income Statements).
Christmas gifts
For non-entertainment benefits like gifts or hampers, the ATO has confirmed that these are generally treated as separate non-associated benefits under the minor benefits exemption rule. For example, an employer can provide the following benefits and still remain within the bounds of the minor benefits exemption:
- food and drink at a Christmas Party costing $275 per person and
- a gift hamper costing $100 per person.
This seems to be a special case for Christmas gifts and events, where the minor benefits exemption and its $300 threshold can be applied separately to the gift without also considering the value of associated Christmas events.
This special treatment does not apply to the Christmas parties which could be made up of several distinct benefits in its own right (e.g. dinner and a social event or performance), These distinct benefits could be considered similar or associate benefits, and their combined costs must be considered collectively. If the combined costs are considered significant, then the minor benefits exemption is not likely to apply, Take, for instance, the expenses of a Christmas party. If the cost for food and drinks per person is $300, and the additional entertainment also amounts to $300 per head, the aggregate expense of $600 per person should be evaluated. Given this combined figure, it’s not likely that the minor benefits exemption would apply, as the total cost for these associated benefits is significant.
The minor benefits exemption is a practical way for employers to provide certain benefits without incurring FBT. To maximise this exemption, make sure you carefully plan and document the costs and frequency of these benefits to avoid doubling the cost of an event.
Get in touch with us
For personalised advice on the FBT implications for Christmas parties and gifts please contact your SW advisor.
We can also assist employers saving time and streamlining your FBT return process using our FBT software, CTSplus FBT. For more information on CTSplus FBT, please send us an email.
Contributors
Sharon Lee
The further thin capital amendments are a step in the right direction for significant multinational tax reform. However, more still needs to be done to ensure the Bill is a targeted and measured response to the issue of base erosion.
The government has introduced more amendments to the thin capitalisation and debt deduction creation rules Bill. While the changes to the Bill are positive, across our client base there are genuine third-party arrangements that will not satisfy the third-party debt test due to inadvertent technical breaches.
SW continues to work with industry bodies to highlight the impact to Treasury. We hope that further amendments will be made to the Bill to ensure it is a targeted and measured response to the issue of base erosion.
Taxpayers will face a further period of uncertainty regarding how the law applies as the Bill has again been referred to a Senate Economics Committee due to report to parliament on 5 February 2024.
What can taxpayers do to prepare?
The focus has largely been on the amendments to the thin capitalisation rules due to its effective date. Our recap of the changes proposed in the Exposure draft can be found here.
However, taxpayers should start identifying the types of arrangements that could be impacted by the debt deduction creation rules as their material impact is arguably greater. The debt deduction creation rules commence on 1 July 2024 for all arrangements and include historical arrangements arising prior to the introduction of the rules.
What are the details of the rules?
The original Bill and amendments are contained across separate documents. This means taxpayers will need to read each document collectively, which is no easy task.
To help you we have prepared a more detailed analysis of the Bill in our Technical Briefing. Our Technical Briefing summarises the application of the proposed law as well as the amendments to the original Bill. Due to the complexity of thin capitalisation, we encourage you to talk to our SW team.
Summary of changes to the Bill
Below are the key changes between the original legislation, released on 22 June 2023 and the Senate amendments made on 29 November 2023:
Choices
- A choice made under the group ratio test will be automatically revoked where a ‘deemed choice’ is made to apply the third-party debt test.
- Revoking choices previously made has been simplified.
Obligor group
- Technical amendment to clarify no requirement to have recourse to all the assets of the entity for that entity to become a member of the obligor group.
- Recourse over membership interest in the borrower will no longer cause the membership interest holder to be a member of the obligor group.
Third party debt test
- Interest rate swaps related to multiple debt interest is deductible under the third-party debt test.
- Conduit financers can recover interest rate swap costs.
- Technical amendments to the pass through of costs where there is a conduit financer.
- The ultimate lender can have recourse to additional permitted assets:
- membership interests in the entity that issued the tested debt interest unless the entity has interest in foreign assets.
- Australian assets of the obligor group.
- Recourse to minor and insignificant ineligible assets can now be disregarded.
- Exemption for different types of credit support rights has been expanded.
Tax EBITDA
- Clarification of tax EBITDA calculation where entity chooses to only utilise a portion of prior year losses.
- Dividends are disregarded when the entity that paid the dividend is an associate entity of the recipient.
- Notional deductions of R&D entities are now required to be subtracted from tax EBITDA.
- Certain deduction relation to forestry and trees are added back.
- Technical amendments so that Tax EBITDA definition operates as intended for trusts and AMITs.
- Entities can ‘push-up’ excess tax EBITDA where that entity is directly controlled (50% or more test) by the parent entity.
Debt deduction creation rules
- The debt deduction must be paid to an associate pair.
- The denial of the debt deduction will occur on a proportionate basis.
- The debt deduction creation rules will apply in priority to the thin capitalisation rules.
- ADIs and securitisation vehicles will be exempt.
- There are three exemptions in situations where the assets have been acquired from an associate pair:
- Membership interests
- Certain tangible depreciating assets
- Debt interest where the parties are merely on-lending.
- Entities that choose the third party debt test will be exempt from the debt deduction creation rules.
- Limitation of the types of payments or distributions that attract the debt deduction creation rules.
- Definition of associates for unit trusts modified for the debt deduction creation rules.
How can SW help?
Our experts can assist with:
- modelling the potential impact of the new rules on your debt deductions
- assessing the feasibility of restructuring the financing structure of the group
- considering whether one of the alternative tests would be applicable and beneficial to your circumstances.
Reach out to your SW advisor for support from our specialist tax team. Download the Technical Briefing for a deeper dive into the technical details.
Contributors
The US Federal Government is proposing a fundamental update of the Office of Management and Budget’s Uniform Grants Guidance.
How do these changes impact your organisation?
The Office of Management and Budget (OMB) have issued pre-released proposed changes to Uniform Grants Guidance on the 21 September 2023 for public comment. The guidelines are issued to all Federal agencies for use across all United States (US) Federal Grants and other types of financial assistance.
The proposed changes to OMB’s Uniform Grants Guidance include the following:
- increase of various thresholds to provide flexibility
- changes to procurement standards
- cost principles including removing prior written approval requirements for certain items and raising the de minimis indirect cost rate to 15%
- remove barriers to entry
- ensure assistance serves intended communities
- increase to the audit threshold from USD$750,000 to USD$1,000,000.
What are the impacts of this update?
The proposed changes aim to streamline compliance process to enable recipients to have more time and resources available to deliver outcomes.
SW continues to review the anticipated changes to Uniform Guidance. Get in touch for further details and how these changes may impact you. We will continue to monitor the progress of any changes that impact US Federal Grants and financial assistance.
SW are education specialists
We have worked with 35 of the 40 major Australian Universities and have extensive experience in assisting education providers with an appropriate audit of US Government sourced funds as required by the OMB Uniform Guidance.
This includes:
- quality expertise and industry insight in compliance with us uniform guidance reporting requirements
- assessment of internal controls to ensure that research grants are managed in compliance with legislative/regulatory requirements
- direct link to Uniform Guidance experts in the US, and
- tailored and collaborative audit methodology.
Get in touch
Our approach to Uniform Guidance audits offers best practice expertise in a practical and commercial manner that is delivered using senior personnel with significant educational sector experience.
Contributor
The ATO has released areas of focus for privately owned and wealthy taxpayers in the Next 5,000 program. Certain taxpayers will face more comprehensive reviews depending on their risk profile.
The key findings found in the Next 5,000 population were that most had informally documented tax governance-like processes and controls in place. The ATO is now increasingly focusing on the next ‘gen’ and tax issues arising from succession planning within a private group.
The ATO will select cases by using data analysis and risk profiling, to identify emerging risks affecting private groups and tax issues relating to the Next 5,000 key priority areas. Taxpayers who were previously reviewed and provided with feedback for improvement or had issues may be subject to a new round of ATO review.
About the Next 5,000 program
The Next 5,000 program was introduced to instil the community’s confidence that Australia’s largest and most complex private groups are compliant with their tax obligations.
This tax performance program considers Australian resident individuals who, along with their associates, control net wealth exceeding $50 million. Approximately 7,300 private groups fall under this population.
Comprehensive risk reviews (CRR)
Whilst most taxpayers within this population will continue to be engaged through a streamlined assurance review (SAR), the ATO has recently advised that comprehensive risk reviews (CRR) will be undertaken for taxpayers identified:
- Through risk profiling of key emerging risks and tax issues affecting private groups, or
- In a previous SAR where the taxpayer had insufficient documented governance controls
How does the ATO engage?
A SAR typically involves request for information relating to the last two income years where tax returns were lodged, and for entities within the group with significant activities, events, and transactions. Where the ATO is satisfied that the four pillars of Justified Trust are achieved, future reviews will examine significant changes to the private group, and/or issues that were not considered/assured in the SAR.
In contrast, a CRR would encompass all entities within the private group and a substantially broader scope.
Click here for our previous coverage of Justified Trust and effective tax governance.
ATO focus for the 23/24 income year
The ATO has identified taxpayers in the Next 5,000 population with the following behaviours and transactions as their focus for the 23/24 income year:
- Tax governance framework not fit for purpose in supporting the expansion of the group
- International expansion and cross-border transactions with related parties
- Entering into intra-group arrangements resulting in an ‘inappropriate’ transfer of wealth
- Re-structuring of the group for the purpose of intergenerational transfer of wealth
- Wealth extraction through private equity funds.
Common tax issues observed in prior year reviews
Common tax issues that the ATO identified from the completed reviews, of which some were escalated to an audit, included:
- Tax governance framework not fit for purpose in supporting the expansion of the group
- International expansion and cross-border transactions with related parties
- Entering into intra-group arrangements resulting in an ‘inappropriate’ transfer of wealth
- Re-structuring of the group for the purpose of intergenerational transfer of wealth
- Wealth extraction through private equity funds.
Key Takeaways
The main observations made by the ATO regarding the Next 5,000 population reviewed to date are that although majority had tax governance-like processes and controls in place, most are not formally documented. The lack of or insufficient governance frameworks has a strong correlation with disclosure errors on ITRs/BASs and taxpayers not recognising tax risks or adopting correct tax treatments.
Noting the program commenced on and around the in the 2020 income year and, taxpayers who were previously reviewed and provided with feedback for improvement, / had issues or unassured /transactions could not assured may be subject to a new round of ATO review. With the aging of the controlling individual/head, it also appears that the ATO is now increasingly focusing on the next ‘gen’ and tax issues arising from succession planning within a private group.
How SW can help
Reach out to us to discuss your tax governance issues, ATO reviews or other related matters.
Contributors
The Treasury released the highly anticipated draft legislation on superannuation. This affects superannuation balances above $3m with an increase in tax rate from 15% to 30% from 1 July 2025.
Notably, the draft legislation allows negative earnings to be carried forward and offset against future years. Otherwise the Treasury’s proposal is largely unchanged from the Government’s original announcement with the proposed amendments inserted into the Income Tax Assessment Act 1997 as Division 296 (Better targeted superannuation concessions).
How to prepare
This is an ideal time to undertake a detailed review of your superannuation, particularly if you are over or approaching the $3m threshold. Everybody’s circumstances are different and it is important to take action as soon as you can to ensure that there is sufficient time to action any planning opportunities. Although this is a significant increase in tax, superannuation is still a good investment vehicle.
A brief summary of the proposed tax
- An additional 15% tax is levied on the portion of earnings and growth (both realised and unrealised) of your individual super balance above $3m
- Losses are carried forward to future income years, but are not refunded
- Losses are lost on death
- The $3m threshold is not indexed
- The tax is levied to the individual and can be paid personally or request a release from the super fund
- Structured settlements (e.g. compensation proceeds, but not disability insurance).
For more details on the draft legislation click here.
Actions required
- Obtain copies of your member statements issued by your superannuation fund and/or financial statements for your SMSF
- Ascertain your current member balance(s)
- Confirm latest contributions made to your super fund
- If you have a spouse or partner, ascertain their super balances.
Contact your SW advisor for your tailored strategy or assist you with a comprehensive review of your superannuation to ensure you are maximising it to its fullest potential.
The decision in Bendel1 could have significant implications to Division 7A application, challenging the Commissioner’s long-standing position to treat unpaid present entitlements (UPEs) as loans.
The Commissioner’s view is that where a company beneficiary of a trust has an UPE, this entitlement will generally be treated as a loan for Division 7A purposes, if it is not discharged within the required time frames. The Bendel and Commissioner of Taxation [2023] AAT 3074 decision held that a UPE was not a loan for Division 7A purposes. If upheld, the case could have significant implications to the application of Division 7A, although we would recommend caution at this stage.
ATO views on UPEs tax treatment
If UPEs are treated as loans under Division 7A, this gives rise to a deemed unfranked dividend to the trust unless the relevant arrangement was placed on complying Division 7A loan terms prior to the lodgement date of the relevant trust. Originally, the prevailing view was that a UPE would not generally constitute or give rise to a loan.
However, with the publication by the ATO of TR 2010/3 and Law Administration Practice Statement PS LA 2010/4, the ATO’s position was made relatively clear. The ATO’s stated view was that a UPE of a corporate beneficiary, prospectively from 16 December 2009 would be regarded as the provision of ‘financial accommodation’ and/or an ‘in substance’ loan in circumstances where:
- the funds representing the UPE were retained for use within the trust, and
- the private company beneficiary allowed this use by acquiescing to this retention with knowledge of it.
This is on the basis that the definition of a loan for the purposes of Division 7A included arrangements involving the provision of financial accommodation and ‘in substance’ loans. The view of the ATO is that such arrangements would be treated as a Division 7A loan in the income year following the income year in which the UPE arose.
As an administrative concession, the ATO’s position was that UPEs placed on certain ‘interest only’ subtrust terms (in compliance with PS LA 2010/4) would not be treated as a loan for Division 7A purposes.
The ATO’s approach to UPEs was changed further in 2022 with the withdrawal of TR 2010/3 and PS LA 2010/4 and issuance of TD 2022/11 which removed the ‘complying subtrust’ concession.
It is surprising that it has taken this long for a judicial challenge and decision to occur on the Commissioner’s views reagarding Division 7A UPEs.
The Bendel Case decision
In the Bendel Case, the court held that the UPEs payable from a discretionary trust to a corporate beneficiary are not loans for the purpose of section 109D(3) of the Income Tax Assessment Act 1936.
The case essentially involved the taxpayer disputing assessments raised by the ATO against beneficiaries of a trust on the basis of a deemed dividend arising to the trust under Division 7A. Whilst there were a number of related issues considered in the judgement, the key issue was whether Gleewin Investments Pty Ltd, as corporate beneficiary of the relevant discretionary trust, had made a loan within the meaning of that term in section 109D(3) of the Income Tax Assessment Act 1936 to the trust.
Section 109D(3) defines the term ‘loan’ for the purposes of Division 7A and encompasses arrangements that involve the provision of financial accommodation or credit regarded as ‘in substance’ loans.
The taxpayer asserted that the extended definition of ‘loan’ for in section 109D(3) needed to be interpreted within the statutory context of Division 7A and other provisions included in Division 7A, the express purpose of which was to deal with arrangements involving UPEs. These provisions included former section 109UB and its more complex successor provisions, Subdivision EA of Division 7A. This was supporting evidence for the proposition that UPEs were not intended to fall within the definition of loan for the purposes of Division 7A. The taxpayer also stated that a contrary interpretation would mean that UPEs could effectively result in a duplication of tax outcomes and double taxing in effect.
The Commissioner argued that the extended wording of the term loan in section 109D(3) was sufficiently clear to include a UPE, and the prospect of double taxation under the provisions were played down as a practical issue by the Commissioner.
The taxpayer’s claims were favoured by the Tribunal who agreed with the double-taxing propositions and the relevance of statutory context. The Tribunal found that the UPE owing was not a loan under section 109D(3), stating at paragraph 101 that:
the necessary conclusion is that a loan within the meaning of section 109D(3) does not reach so far as to embrace the rights in equity created when entitlements to trust income (or capital) are created but not satisfied and remain unpaid. The balance of outstanding or unpaid entitlement of a corporate beneficiary of a trust, whether held on a separate trust or otherwise, is not a loan to the trustee of that trust.
So what does this decision mean?
The decision, whilst being a relatively junior judicial decision, is a significant decision for private group taxpayers. The Commissioner will most likely lodge an appeal to the Federal Court. It is unlikely that the Commissioner will resile from his views in TD 2022/11 unless a more senior court rules similarly in favour of the taxpayer. The ATO will likely also shortly release a Decision Impact Statement (DIS) in response to the AAT’s decision.
There are some caveats in relation to this decision. As noted by the Tribunal, Division 7A implications may still arise (under Subdivision EA) where any UPE remains outstanding in favour of a private company beneficiary and the relevant trust undertakes certain transactions in favour of shareholders or associates of the company (such as a loan). In addition, the Commissioner has also recently highlighted that another anti-avoidance provision, section 100A could also play a role in relation to some UPEs.
Although the decision will be welcomed by many taxpayers, caution is still recommended in the treatment of UPEs. SW will be closely monitoring any developments in this space and will keep you informed.
How SW can help
If you would like to discuss the Bendel decision or need assistance with your Division 7A matters, please reach out to us.
Contributors
1 Bendel and Commissioner of Taxation [2023] AAT 3074 decision
With new legislation on the horizon, large Victorian private schools traditionally exempt from payroll tax, are facing a substantial shift in operational norms.
This paradigm shift for Victorian non-profit private schools mandates proactive measures in establishing processes and templates, upskilling staff, and addressing potential challenges, ensuring a seamless transition into compliance with payroll tax obligations. While other jurisdictions have not announced any similar changes, the Victorian legislation paves the way for other jurisdictions to follow suit.
Starting from 1 July 2024, Victorian non-profit private schools with an income per student exceeding $15,000 will be subject to payroll tax. Employers must assess their own liability for payroll tax, regularly submit returns and make payments, typically monthly, to the Victorian SRO.
While navigating these changes seem supposedly straightforward, there is a good reason the SRO is one of the most active agencies with their data matching and compliance programs. Schools need to ensure that processes are well designed, to avoid common errors, minimising manual input and intervention and align with other submissions to other Government authorities (e.g. workers compensation, trainees and STP). This will also prevent overburdening existing employees with another time-consuming monthly process.
How to prepare for payroll tax changes
At a high level, schools newly subject to payroll tax will need to take steps before the obligations begin, including:
- register for payroll tax and PTX express
- review internal systems, processes and data to address risk areas such as:
- treatment of pay codes | ensure that pay codes are set up correctly to accurately disclose taxable wages in the required categories, including salaries, commissions, leave, allowances, superannuation, and more
- treatment of contractors | the relevant contract provisions extend payroll tax obligations to all service-based arrangements, with taxpayers needing to assess each non-employee worker against a series of 8 exclusions
- grouping | The payroll tax grouping provisions can be complex, and if caught can result in the reduction of available payroll tax thresholds
- data matching and investigation risks | it is not sufficient to get the taxable wage amount correct. Schools should ensure that disclosures align with other submissions to minimise the risk of investigation.
- understand their systems and available data and developing a robust monthly process, including:
- a process and documentation for data extraction and review
- a working template for calculations
- a review and lodgement process and controls
- documentation of important payroll tax positions, process and methodology.
- maintain ongoing processes for compliance with changing law and regular testing of existing processes.
How SW can help
As this is uncharted territory for many schools, our SW payroll tax experts are offering a comprehensive package to assist school finance teams get up and running with their payroll tax processes. This package includes:
- understanding the payroll systems and data, as well as the process for engaging contractors.
- working with the team to get detailed descriptions of pay codes and determine payroll tax positions (including recommendations to restructure pay codes if needed).
- designing an Excel-based model (e.g. using PowerQuery/PowerPivot) in conjunction with the school for monthly and annual payroll tax reconciliations. This template is designed to source information from raw data files (e.g. payroll reports) and produce the required breakdown for payroll tax returns with minimal manual manipulation.
- documentation of methodology and positions (including a matrix of pay codes, descriptions and payroll tax positions).
- payroll tax training for staff members including use of the model.
- assistance with the preparation of the first payroll tax return and ad hoc support for 6 months for queries that arise after handover process
- review of the first annual payroll tax reconciliation.
We offer complementary initial discussions for us to understand the school systems and processes as well as data sources as well as highlight discuss any risk areas.
Contributors
Followed by rulings in QLD and SA, the Victorian State Revenue Office and Revenue NSW have issued rulings that may subject many medical practices to payroll tax on practitioner payments processed through the practices.
The NSW and VIC Revenue Authorities have recently published harmonised revenue rulings (Revenue Rulings PTA-041) following similar rulings in QLD and SA. These rulings confirm the Revenue Authorities official position that payroll tax is likely to apply to payments made by medical practices to medical practitioners under the ‘relevant contracts’ payroll tax provisions irrespective of whether the fees under contractual arrangements are merely processed on behalf of the medical practitioner.
This ruling has far-reaching implications for medical centres, dental clinics, physiotherapy practices, radiology centres, and similar healthcare providers that have not been treating these payments as subject to payroll tax. We recommend that immediate action to assess compliance both retrospectively and on an ongoing basis as well as consider whether arrangements are optimally structured. If retrospective issues are found, employers can consider voluntary disclosure or amnesty/exemptions if available. The SW Team is here to guide you through these complex changes.
Introduction
Followed by rulings in QLD and SA, the Victorian State Revenue Office and Revenue NSW have issued rulings that may subject many medical practices to payroll tax on practitioner payments processed through the practices. We have provided links to each of the rulings below:
- NSW | PTA 041 Payroll Tax Act- Relevant Contracts – Medical Centres | Revenue NSW
- VIC | Relevant contracts – medical centres | State Revenue Office (sro.vic.gov.au)
- QLD | Public Ruling PTAQ000.6.1 Relevant contracts—medical centres – Queensland Revenue Office (qro.qld.gov.au)
- SA | PTASA003 | RevenueSA
These rulings, influenced by recent court decisions, aim to impose payroll tax on practitioner payments processed by medical practices which would not ordinarily be considered derived as income or treated as an expense when paid by the medical practices for income tax or accounting purposes. It casts a wide net, potentially impacting a broad spectrum of healthcare providers.
While it is important to recognise that the rulings are harmonised, meaning they are consistent across different jurisdictions, each jurisdiction has responded differently to the impact of the changes, with responses mainly in relation to General Practitioner (GP) medical practices. See below for details on concessions in ACT, SA, QLD and NSW.
The rulings provide clarity on the harmonised position adopted by the Revenue Authorities but also raises urgent concerns for medical practices. It applies to existing arrangements and can have retrospective effect depending on whether amnesty or an exemption is available.
Relevant contract provisions
The recent payroll tax rulings and court decisions centre around the application of the Relevant Contract provisions and understanding how these provisions work is essential for medical practices.
A relevant contract is an agreement that can be characterised as a contract for the performance of work, such as a service or contracting agreement. Prior to the recent court decisions, it was generally only payments that were directly referrable to services rendered which were treated as subject to payroll tax. This meant many medical practices may not have included payments distributed to practitioners as subject to payroll tax on the basis that patient fees were directly derived by the practitioners as income (though the collection and distribution of the patient fees was processed by the medical practice). The medical practice then earned its income from a proportion of patient fees charged by the medical practitioner as payment for administration and facility services.
In other words, the rulings and court decisions expanded the conventional understanding of the types of payments which could be subject to payroll tax.
The rulings have determined that if a medical centre engages a practitioner to practice from its premises, or if it provides patients with access to the medical services of a practitioner, a relevant contract likely exists. Payments while not derived or treated as income by the medical practice are considered taxable payments under the ‘relevant contract’ provisions.
In other words, the medical centre is deemed to be an employer, and the practitioner is deemed to be an employee, making any payments under the contract subject to payroll tax.
While the rulings have broadened the scope of what constitutes a relevant contract and the type of payments the provisions capture, certain exclusions may still apply to mitigate or eliminate payroll tax liability. The exemptions that are more likely to apply to a contract between a medical centre and a practitioner include:
- the practitioner providing services to the public generally (e.g. if the practitioner provides services to more than one medical practice)
- the practitioner performing work for no more than 90 days in a financial year
- services performed by two or more persons (e.g., a practitioner personally providing a nurse or assistant).
It’s essential for medical centres to carefully evaluate their contractual arrangements on a case-by-case basis to determine if the work performed by the medical practitioner is considered services for the practice, whether the payments are capture by the provisions and if so, whether any of these exclusions apply. Professional advice is recommended to ensure complete understanding and accurate compliance with these provisions, and whether arrangements should be re-structured or clarified on a go forward basis.
Medical centres should also consider whether the employment agent provisions may apply to the arrangement (meaning that the Relevant Contract exclusions do not apply).
It is important to note that there are a number of jurisdictions which have not issued the harmonised ruling and we briefly summarise the “state of play” in these jurisdictions:
- ACT – Has recently announced concessions for general practitioners so it is likely that a similar position is adopted
- NT and TAS – There has not been any indication in these jurisdictions as to whether a similar view will be adopted
- WA – The legislation in WA is significantly different and in a letter to the RACGP, confirmed that most General Practitioners will continue to be treated as independent contractors (i.e. not subject to payroll tax).
What concessions have been made available?
Certain concessions have been announced/offered in ACT, SA, QLD and NSW which we briefly outlined below:
- ACT – the ACT Government announced that payroll tax on payments made to General Practitioners (GP) is waived to 30 June 2023 with the compliance deadline extended to 2025. Further, an exemption to 30 June 2025 will be available for GP payments for practices which bulk bill 65 percent of all patients and have registered for MyMedicare. Applications will need to be made to the ACT Revenue Office by 29 February 2024
- SA – An amnesty is available on GP payments up to 30 June 2024 for designated medical practices that make a voluntary disclosure and register for payroll tax if necessary. Medical practices must comply with payroll tax obligations post 30 June 2024. Expressions of interest must be made by 30 September 2023
- QLD – An amnesty is available on GP payments up to 30 June 2025 for medical practices that make a voluntary disclosure prior to 30 June 2025 and register for payroll tax if necessary. Expressions of interest must be made by 29 September 2023
- NSW – the NSW Government announced that they will pause audits on medical centres for 12 months to consult with GP groups. Interest and penalties accrued will be paused.
Who is impacted?
- Medical centres not only including GPs
- Dental clinics, physiotherapy practices, radiology centres, optometrist centres
- Other allied healthcare providers contracting with medical, dental, and other health practitioners.
It should be noted that while the cases and rulings focus on the medical industry, it would not be inconceivable for the Revenue Authorities to apply the principles to other industries which rely on similar legal constructions for structuring work performed and payments. Examples could include veterinarian practices, personal trainers in commercial gyms or sports coaches, nail technicians in nail salons etc.
What is the impact?
Immediate action is required given the ruling’s retrospective and prospective application.
The impact will differ depending on whether the medical practice is a GP medical practice.
All medical practices will need to consider how their medical practitioner arrangements should be treated under payroll tax law, whether payroll tax shortfalls arise on a retrospective basis and whether an increase in the payroll tax oncost is likely on an ongoing basis. If payroll tax shortfalls do arise there is a potential for interest and penalties to accrue which can be mitigated by making voluntary disclosures.
GP medical practices should consider the various concessions that are available to reduce any payroll tax shortfalls or ongoing oncost, as well as interest and penalties. In particular, practices should ensure that applications or expressions of interest have been lodged by the due date if relevant.
How can SW help?
Medical practices must review their current agreements to assess whether they evidence a relevant contract and consider whether agreements should be updated or changed and any voluntary disclosures which may need to be made (even if amnesty applies).
There are essentially three limbs for payroll tax to apply under the Relevant Contract provisions:
- that services are provided to the medical centre
- that there is a payment for payroll tax purposes and
- whether an exclusion applies.
Each of these should be considered in the review of retrospective arrangements, but also with a view to compliance or risk mitigation on an ongoing basis.
The SW Team, with its expertise in tax law, is ready to assist you in navigating these complex changes. Our dedicated team can:
- conduct a comprehensive review of your existing agreements and structures
- provide tailored advice on compliance and potential exclusions
- work with the business to restructure arrangements to mitigate risk with ongoing payroll tax obligations
- assist with private rulings on for prospective arrangements with the SRO
- assist with voluntary disclosure if needed
- offer ongoing support to ensure alignment with the latest legal requirements.
Contact the SW Team today to schedule a consultation and ensure that your practice is prepared for these significant payroll tax implications. Our expert team is here to support you every step of the way.
ASIC has released the focus areas for 30 June 2023 reporting, highlighting the impact of uncertain market and economic conditions on reporting.
The ASIC media release on 6 June 2023 outlined its key areas of focus for this reporting season, stressing the need for directors, preparers of financial reports and auditors to evaluate the potential impact of shifting circumstances, uncertainties, and risks.
Key areas of focus
Asset values
Considerations for directors, preparers, and auditors regarding asset values include:
- impairment of non-financial assets
- appropriate valuation methods
- factors affecting property values
- expected credit losses
- asset classification
- inventory valuation
- deferred tax assets
- investments in unlisted entities.
Provisions
Financial statement preparers need to provide sufficiently for potential expenses or obligations relating to onerous or loss-making contracts, property leases, restoring mining or other sites, providing financial guarantees, and making changes to your business.
Solvency and going concern assessments
In a growing interest rate market, debt can become very expensive to manage and covenant breaches more common resulting in solvency and going concern issues. Inflation is also an issue for many entities to manage. Our advice is to ensure that projections are reasonable and realistic and going concern disclosures are made with sufficient detail in the financial statements if there are material uncertainties surrounding going concern.
Events occurring after year end and before completing the financial report
It is important to review any events that happen between the end of the year and the completion of the financial report. This review should determine if these events have any impact on the assets, liabilities, income, or expenses at the end of the year or if they involve new conditions that need to be disclosed. Covenant breaches post year-end need to be identified. Adjustments or disclosures relating to relevant events post-year end is important to investors and other stakeholders. Omission of such material information could be problematic, in particular in an uncertain economic environment.
Disclosures in the financial report and Operating and Financial Review (OFR)
Disclosure of information is important to investors and other stakeholders. Directors must ensure disclosures are specific to the entity’s circumstances and highlight changes from the previous period. Address uncertainties, classify assets and liabilities correctly, and explain the impact of economic conditions in the Operating and Financial Review. Discuss risks, strategies, and consider climate change and cybersecurity risks. Present non-IFRS profit measures accurately and disclose significant developments since end of last year in half-year reports.
Impact of uncertainty
Market and economic conditions are particularly uncertain this year, which impacts financial reporting in areas where significant estimates and judgements are required in the financial statements.
The impact will be different depending on industry, geography, markets, suppliers and customers but very few industries are not facing significant uncertainty.
Directors and financial statement preparers should take into account what the entity’s current performance is, what the future holds and how those factors impact on values of assets, provisions and business strategies.
“We have seen ASIC take more action against Directors in recent times and recommend that Directors are across all the significant estimates and judgements in their financial reports, including ensuring material disclosures are appropriate, complete and accurate. In an uncertain economic environment, more estimates and judgements are required in financial reporting particularly when incorporating forward-looking information,”
Rene Muller, Partner SW Assurance and Advisory Division
The particular market conditions highlighted by ASIC as those representing changing circumstances, uncertainties and risks are:
- availability of skilled staff and expertise, which can impact on revenue and costs
- impact of rising interest rates on future cash flows and on discount rates used in valuing assets and liabilities
- inflationary impacts that may differ between costs and income
- increases in energy and oil prices
- geopolitical risks, including the Ukraine/Russia conflict
- impacts of climate change, climate related events and transitioning to ‘net zero’
- technological changes and innovation
- COVID-19 conditions and restrictions during the reporting period
- changes in customer preferences and online purchasing trends
- discontinuation of financial and other support from governments, lenders and lessors
- legislative and regulatory changes
- other economic and market developments.
How SW can help
Our team of audit and assurance experts are fully informed of the ASIC focus areas and can assist with providing guidance for your year-end financial reporting, as well as keeping you abreast of developments from an Australian reporting context.
Reach out to our key contacts here for a conversation.