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We’re excited to bring back the SW Agri Connect Trade Forum, promoting connection and trade in the Agribusiness, Food and Beverage sector.

With natural disasters and a pandemic continuing to cause disruption to the industry, plus an outbreak of foot and mouth disease raising concerns, we’re bringing together Agribusiness leaders and sector players to help bring hope and optimism to businesses from around the world.

Following a keynote from ANZ‘s Head of Agribusiness Insights, Michael Whitehead, some of our speakers include:

Hosted and moderated by SW agribusiness leaders, our speakers will discuss:

Keynote | Insights into agribusiness and outlook for the sector

Trade | Opening doors to export opportunities

Sustainability | Future-proofing Australian Agribusiness

SW is proud to sponsor the International Cool Climate Wine Show, the southern hemisphere’s foremost show for inspirational cool climate wines.

Celebrating it’s 20th show, the International Cool Climate Wine Show (ICCWS) attracts more than 700 wines from around the world. The ICCWS is an opportunity to taste and network with wine retailers, restauranteurs, sommeliers, wine writers, wine media, wine students and wine enthusiasts.

What’s your flavour?

Australian wine has long held a stellar and well-earned reputation in global markets. SW understands the opportunities and challenges facing the wine and hospitality sectors in producing and selling wine both domestically and internationally.

At the show, we’ll be asking winemakers and members of the public how we can help wineries open their cellar doors. To enter, simply scan the QR code at the show and complete the survey. By having your say, you will also go into the draw to win a prize valued at $250.

Our teams will also be onsite at the Public Tasting Day on Saturday 28 May, so register below and get in touch with your SW contact to organise a good time to meet. We hope to see you there.

By entering this competition you agree to your details being included in SW Accountants & Advisors and International Cool Climate Show’s databases where you may receive articles, alerts and event invitations. If the survey is not completed you do not go into the draw or SW Accountants & Advisors’ database.

Broad ranging stamp duty amendments currently being considered in NSW include extending duty to change of beneficial ownership transactions, expanding anti-avoidance provisions, increasing penalties for SGEs and introducing promoter penalties.

On 23 March 2022, the State Revenue and Fines Legislation Amendment (Miscellaneous) Bill 2022 (NSW) was introduced into the New South Wales Legislative Assembly. The Bill operates to broaden the existing duty base and anti-avoidance and penalty regime in NSW.

Whilst there is some good news with respect to refunds of foreign purchaser duty and land tax in certain circumstances and broadening duty relief for primary production land transfers between family members, other amendments will increase both the scope and administration of NSW state taxes. These include:

Change of Beneficial Ownership

The proposed amendments, which have been modelled on provisions contained within the Duties Act 2000 (Vic), broaden the tax base from transactions that are currently dutiable (i.e. a declaration of trust, transfer or sale) to capture transactions involving a change in beneficial ownership and include:

The provisions have broad application and may apply to impose duty on:

The person who obtains beneficial ownership, or whose beneficial ownership is increased, will be liable for duty on the dutiable value of the property held.

Certain transactions which are not intended to be captured under these provisions comprise of:

The amended provisions will only apply to transactions that occur after the proposed provisions commence. Furthermore, the provisions will not extend to transactions arising after the commencement date if the transaction occurs in accordance with an agreement or arrangement entered into before the commencement date.  

Acknowledgement of Trust

The Bill also proposes charging duty on any statement that:

Effectively, this amendment will overcome the decision in Chief Commissioner of State Revenue v Benidorm Pty Ltd[1].The Court held that a declaration of a trust over dutiable property must have a causal effect on the transaction for duty to arise. Merely acknowledging the existing state of affairs in place was not sufficient.

The provision refers to a statement that purports to be a declaration of trust. Presumably an amendment and / or restatement of trust that declares that it does not amount to a new declaration of trust is not captured. However, trustees should be careful executing documents that contain wording capable of being considered as a declaration of trust.

Foreign surcharge purchaser and land tax surcharge refund

The Bill proposes to introduce a refund for an Australian corporation, where the land acquired is used by the transferee, after the completion of the transfer, wholly or predominantly for commercial or industrial purposes.

Currently the Duties Act and Land Tax Act provide for refunds of surcharge purchaser duty and land tax for an Australian corporation where the land is applied to the construction of new homes or the subdivision of land into lots for new residential homes.

Duty and land tax may be refunded only if an application for the refund is made:

Intergenerational transfers of primary production land

At present, an exemption from duty on primary production land transfers between family members applies if the transferee is an individual. The amendments extend the exemption to apply to certain transfers to entities including a superannuation fund, a family discretionary trust, a private unit trust scheme or a proprietary limited company. 

For the exemption to apply, the family member must be the individual directing the transferee. In addition, if the transferee is a proprietary limited company or a trustee of a discretionary trust or of a private unit trust scheme, the family member must maintain a minimum 25% interest in the transferee for 3 years after the transfer. 

Introduction of a new anti-avoidance regime and promoter penalties

The current anti-avoidance provisions, focusing on tax avoidance schemes of an “artificial, blatant or contrived nature” under Chapter 11 of the Duties Act are to be removed. In its place, a new regime will be inserted into the TAA.

The proposed amendment will have broader application as the statement of object of the Chapter no longer refers to ‘artificial, blatant or contrived schemes’. The object is now merely to ‘deter schemes to avoid tax liability’. “Avoid” is broadly defined and can include the postponement of tax.

Additionally, provisions to prohibit the promotion of tax avoidance schemes will also be introduced. This aims to capture persons promoting a tax avoidance scheme if that person “markets the scheme or otherwise encourages the growth of the scheme or interest in it”.  A person will not be considered a promoter under the provisions if they are merely:

In contravening the provision, a person may be issued with an order by the Supreme Court, upon application by the Chief Commissioner, to pay the State a civil penalty up to:

Penalty Tax

The penalty tax rate for significant global entities (SGEs) within the meaning of the Income Tax Assessment Act 1997 is set to double from 25% to 50% for tax defaults.

How can SW help?

SW provides a range of expert services to private individuals and businesses for specialist taxes such as stamp duty. Reach out to our team to explore how we can help your individual circumstances such as:

Contributors

Robert Parker

Carmelin De Francesco

Mitchell Kenny

[1]Chief Commissioner of State Revenue v Benidorm Pty Ltd (2020) 101 NSWLR 729.

On 9 February 2022, The High Court of Australia delivered two long-awaited decisions to confirm the primacy of the written agreement and the importance of contractual terms when determining whether a worker is an employee or independent contractor.

This has highlighted a shift away from the checklist type multi-factorial test, where a valid agreement exists. The High Court found that where parties have entered into a valid and comprehensive written agreement, the terms within the agreement establish the legal character of their relationship.

Below are summaries of the two High Court decisions.

ZG Operations Australia Pty Ltd & Anor v Jamsek & Ors

This High Court case was an appeal from a judgment of the Full Federal Court of Australia.

Mr Jamsek and Mr Whitby were initially employed as drivers by ZG Operations Australia Pty Ltd. In 1985 or 1986 both the individuals set up partnerships, purchased their trucks and signed written agreements with ZG Operations to deliver goods.

The agreements stipulated that Mr Jamsek and Mr Whitby were to be at the exclusive disposal of ZG Operations for 9 hours a day, 5 days a week. The men drove trucks with the company logo and wore ZG branded clothing. They provided invoices to ZG Operations which were then paid to their respective partnerships.

The Full Federal Court of Australia found Mr Jamsek and Mr Whitby were employees of ZG Operations, given the level of control exerted by ZG Operations over the men and the requirement they be at the company’s disposal 9 hours a day, 5 days a week.

The High Court overturned the Full Federal Court decision and found that given neither party questioned the validity of the principal/contractor agreement or regarded it as a sham, the agreement was valid and determined the legal character of the relationship, being that of a principal and independent contractor.

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd

This case concerned Mr McCourt, a British backpacker who had travelled, resided, and worked in Australia temporarily on a working visa.

Mr McCourt signed a contract with a labour-hire company, Personnel Contracting Pty Ltd, trading as Construct, which described his position as a contractor. Mr McCourt was assigned to two construction sites owned by Hanssen, a client of Construct. During the assignment, he was under the direction of Hanssen employees, although there was no contractual relationship between Hanssen and Mr McCourt. Mr McCourt supplied basic equipment, had recurring patterns of work and set start/finish times.

After his engagement with Construct concluded, Mr McCourt, with the Construction, Forestry, Maritime, Mining and Energy Union, brought an action against Construct seeking compensation and penalties for alleged breaches of the Fair Work Act 2009, on the basis that Mr McCourt was an employee of Construct.

The matter was heard by the Federal Court and later the Full Federal Court where it was decided that Mr McCourt was a contractor based on the multi-factorial test.

On appeal, the High Court unanimously overturned the Full Federal Court’s decision and held that Mr McCourt was an employee of Construct. The High Court found that the multifactorial test approach taken by both the Federal Courts was problematic as it is impressionistic and can lead to inconsistency and considerable uncertainty.

The High Court suggested the characterisation of whether a person is an employee or an independent contractor is determined by reference to a consideration of the legal rights and obligations of the parties under the contract.

The High Court found:

In both cases, the High Court highlighted the importance of applying the terms of the agreement where a valid agreement exists in assessing whether a worker is a contractor or an employee. Merely describing an individual as a contractor in the agreement is not sufficient to support an independent contractor relationship. The contract will need to be considered in its entirety to determine the relationship.

How SW can assist

These cases demonstrate the need to review contractual arrangements you have on foot and seek appropriate tax advice. We can assist in ensuring you remain compliant and make suitable disclosures regarding employment taxes. Please get in touch with your SW contact if you would like to discuss what these decisions mean for your business.

Contributors

Rahul Sanghani

E [email protected]

Tom Warrington

E [email protected]

At our annual Employment Taxes update for the Not-for-profit, Government and Corporate sectors we reviewed the latest tax news and the employment taxes impacts of the COVID-19 pandemic.

During these webinars our tax experts provided an update on:

Not-for-profit | Government

Corporate

Your guides online


Stephen O’Flynn
Director, SW

Sam Morris
Director, SW

Helen Wicker
Director, SW

Justin Batticciotto
Associate Director, SW

Tony Principe
Associate Director, SW
 
Rahul Sanghani
Senior Manager, SW

The NSW Government has recently announced new or extended COVID-19 support measures for small and medium businesses.

The 2022 Small Business Support Program

The new program is intended to help NSW businesses survive the immediate impact of the COVID Omicron variant wave. Eligible businesses with a turnover of between $75,000 and $50 million that experienced a minimum 40% decline in turnover in January 2022 (and the first fortnight of February 2022) can apply for support through this program.

Employing businesses will be eligible to receive 20% of weekly payroll as a lump sum for the month of February, with a minimum payment of $750 per week and a maximum payment of $5,000 per week. Non-employing businesses will receive $500 per week, paid as a lump sum of $2,000.

The 2022 Small Business Support Program is only for the month of February and businesses will be able to apply through Services NSW from mid-February. Further details on the eligibility rules will be issued shortly.

Eligibility

To be eligible for the program, there must be a decline in turnover due to either public health orders or the impact of the Omicron variant of more than 40% during both:

Further, employers must maintain employee headcount from 30 January 2022.

Small business fees and charges rebate

Eligible businesses or not-for-profits only need to apply for the rebate once, but can submit multiple claims until the full value of the rebate is reached. The funds can be used to offset the costs of eligible NSW and Local Government fees and charges due and paid from 1 March 2021. These include, but are not limited to:

The rebate cannot be used for fines or penalties, fees and charges that have the key purpose of discouraging behaviours or inducing behaviour changes, Commonwealth Government charges, rent on government premises or taxes. However, the rebate can now be used to cover half the cost of Rapid Antigen Tests (RAT).

The rebate will be available until 30 June 2022.

Eligibility

To be eligible for this rebate, small businesses (including non-employing sole traders) and not-for-profit organisations must:

Note: Only one $3,000 rebate is available for each ABN.

Alfresco Restart Rebate

Small or medium food and beverage businesses wanting to create or expand their outdoor dining area may be eligible for a rebate of up to $5,000 under the NSW Government’s Alfresco Restart Package. The rebate is available to the first 5,000 eligible small or medium food and beverage businesses that register.

There are 2 steps involved in the Alfresco Restart rebate:

1. Register for the rebate

2. Claim the rebate

Eligibility

To be eligible for the rebate, businesses must:

When claiming the rebate applicants must also, where applicable:

Note: Only one application per ABN is allowed. The rebate can be used towards outdoor dining expenses at multiple business locations if eligibility criteria are met.

Commercial Landlord Hardship Grant

Small commercial or retail landlords may be eligible for a grant under the Commercial Landlord Hardship Fund if their main source of income is impacted due to providing rent relief to tenants financially impacted by COVID restrictions.

Grants of up to $3,000 per month (GST inclusive), per property, are available for eligible landlords who have provided rental waivers to affected tenants. Rent waived must comprise at least half of any rental reduction provided. The remaining portion may be a rental deferral. The grant does not apply to rent deferrals.

Grants will be paid as a lump sum amount for the rent waived from 1 August 2021 to 13 March 2022. This is an extension of the period which previously ended 14 November 2021. Applications close on 31 March 2022.

Eligibility

To be eligible for a Commercial Landlord Hardship Grant, applicants must:

Performing Arts COVID Support Package

The Package will now be extended from an end date of 14 February 2022 to 30 April 2022.

The funding is to be provided to eligible performances staged between 19 September 2021 to 30 April 2022.

The funding amount per performance will be calculated using a formula of:

Eligibility

To be eligible for funding, the applicant must be one of the following:

Eligible venues have been identified through:

Eligible performances must be evidenced by:

How SW can assist

Many businesses have found the eligibility criteria difficult to navigate.

Our experts can guide you through the process and help you gather accepted relevant documentation to ensure your business gains the maximum benefits for these support measures.

Contributors

Tony Principe

E [email protected]

Jae Debrincat

E [email protected]

The Commercial Tenancy Relief Scheme Regulations 2022 (Regulations) have been released, providing relief for eligible tenants from 16 January 2022 to 15 March 2022.

Eligibility

Tenants who are ‘small entities’ may be eligible. A $10m turnover threshold applies, which is based on the year ended 30 June 2021 in most cases. This is lower than the $50m threshold that applied in earlier periods.

Consistent with Regulations applicable to earlier periods, eligibility for the new Regulations is determined based on a comparison of the tenant’s turnover for two periods.

In most cases, the periods to be compared are the months of January 2022 and January 2020. However alternative periods can be used in limited circumstances.

Business tenants need to demonstrate a 30% decline in turnover and ACNC registered charities (with some exceptions) need to demonstrate a 15% decline in turnover.

Process

The process for agreeing rent relief is outlined below.

  1. Tenant determines their eligibility
  2. Tenant applies for relief in writing, providing a statement including:
  1. Within 14 days of applying for relief in writing, the tenant must provide evidence in the form of either:

Failure to do the above within 14 days will result in a lapsed application. A tenant can allow up to 3 applications to lapse before they can no longer apply.

  1. Within 14 days of providing evidence, the landlord must provide an offer for relief complying with the following minimum requirements:
  1. Landlord and tenant to negotiate and agree on rent relief
  2. If within 15 days of the landlord providing an offer, the landlord and tenant have not reached agreement and the matter has not been referred to the Victorian Small Business Commissioner for mediation, then the tenant is deemed to have accepted the landlord’s offer
  3. Agreement should be documented.

Deferred rent

Unless otherwise agreed, deferred rent is to be repaid in equal instalments from 16 March 2022 over the greater of the remaining term of the lease or 24 months.

For eligible tenants, repayment of any rent previously deferred in an earlier period under previous Regulations should be paused and restarted from 16 March 2022.

Other considerations

There are various protections offered within the Regulations, including for example that rent cannot be increased for eligible tenants during the relief period.

Landlords will be prohibited from evicting tenants without first undertaking mediation through the Victorian Small Business Commission.

Tenants can apply for subsequent rent relief if an agreement has previously been made and their financial circumstances materially change.

Commercial landlords that provide rent relief to eligible tenants may be eligible to receive support through the $20 million Commercial Landlord Hardship Fund.

Next steps

Landlords and tenants are required and encouraged to negotiate in good faith. Affected parties should seek advice to ensure that they are operating within the requirements of the Regulations.

How SW can help

SW has property experts who can assist affected landlords and tenants with determining eligibility including calculating the decline in turnover, required rent relief and understanding the process.

Reach out to one of our tax and property experts below for a conversation about your circumstances.

Contributors

Blake Rodgers

E [email protected]

Thank you for your support throughout the year. We wish you a healthy, successful & prosperous new year.

Deadline is 4 February 2022 (in lieu of 31 December 2021). Failure to lodge can lead to Country-by-Country reporting entities being penalised up to $555,000 (per file).

Who is affected?

Why is this important?

Country-by-Country (CbC) reporting was introduced under Action 13 of the OECD Base Erosion and Profit Shifting (BEPS) initiative.

It is a tool to enhance transparency for tax administrations, and is part of a suite of international measures aimed at combating tax avoidance. To date, approximately 100 jurisdictions have introduced CbC reporting legislation, including Australia.

What is a CbCRE?

An entity (individuals excluded) is a CbCRE if it is:

A ‘CbC reporting parent’ is an entity that is a member of a CbC reporting group that is not controlled by another entity in that group according to commercially accepted accounting principles, and the annual global income of that entity is A$1 billion or more.

A ‘CbC reporting group’ is either:

When a CbCRE is subject to CbC reporting?

Broadly, if a relevant entity is a CbCRE during the preceding year, and continues to be an Australian tax resident during the current year, the relevant entity is required to lodge CbC reporting statements to the ATO within 12 months after the end of the current reporting period.

CbC reporting timeline

What statements need to be lodged?

CbC statements
CbC reporting statementsAustralian CbC reporting parentAustralian CbC reporting non-parentApproved format for lodgement
Local filePrepare and lodgePrepare and lodgeXML schema (*)
Master filePrepare and lodgeObtain a copy from group parent and lodgeAttachment to file (in English only)
CbC reportPrepare and lodge (unless lodging through a surrogate entity)Notification only (if there is activated exchange between Australia and the jurisdiction in which the CbC report is lodged), otherwise lodgeXML schema (*)

*SW Australia is capable of completing this through in-house developed software.

Exemption, relief and extension

Available based on case specific circumstances.

Get in touch

If you need assistance with your CbC reporting, contact one of our SW international tax and transfer pricing specialists below.

Contributors

Yang Shi

E [email protected]

Stephanie Mulyawan

E [email protected]

Elena Guo

E [email protected]

Swee Tan

E [email protected]

From all of us here at SW, we would like to thank you for your continued support throughout 2021. We are incredibly proud of how our community has got through another challenging year. We wish you and your family the very best for the festive season and a healthy, happy and successful 2022.

Our offices will be closed from Friday 24 December 2021, reopening Monday 10 January 2022.