On 15 June 2022 the High Court in Hill v Zuda Pty Ltd  HCA 21 ruled against a challenge to earlier court decisions that a binding death benefits nomination (BDBN) made under the governing rules (GRs) [trust deed] of a self managed superannuation fund (SMSF) need not lapse after three years of the nomination as a comparable nomination made under a retail or industry superannuation fund must under Regulation 6.17A(7) of the Superannuation Industry (Supervision) Regulations.
Non-lapsing SMSF BDBNs confirmed
The High Court’s decision confirmed that this regulation, which operates under the force of sub-section 59(1A) of the Superannuation Industry (Supervision) Act 1993 (SIS Act), did not apply to or limit the effectiveness of a BDBN made as non-lapsing more than three years earlier by a member of a SMSF under GRs of the SMSF that allowed for non-lapsing BDBNs.
External discretions and directions
It follows that other limitations in section 59 and Regulation 6.17A also have no application to a SMSF. Among them is the original rule in sub-section 59(1) which broadly, with exceptions, invalidates GRs that allow a person other than the trustee to exercise a discretion under the GRs of a fund. A related provision, which is similarly confined to retail and industry funds, and especially clearly so, following Hill v. Zuda; is section 58 of the SIS Act which broadly, with exceptions, invalidates a GR under which a person may direct the trustee (to act or not act in a certain way in the conduct of the fund).
Implications for death benefits directions
Without the reservation for superannuation funds other than retail and industry funds it would be thought that death benefits agreements or “SMSF wills” included in, or which took effect under, the GRs of a SMSF which prevailed over, or overrode, a power or discretion of a trustee to decide on which dependant of a deceased member was to take death benefits of the member would fail. It seems indisputable now that trustees of SMSFs and Small APRA Funds, can be effectively directed and bound by members on where their death benefits are to go under valid GRs whether that is by nomination, direction or in some other way .
It follows that SMSF GRs are free to allow for members, either not as or not acting in their capacity of trustees or as directors of a trustee, to control decisions over to whom their death benefits are to be paid. This is starkly different to a retail or industry fund that cannot outsource the duties and obligations of its trustee to determine who is take the benefits of a deceased member unless the BDBN requirements in Regulation 6.17A are strictly complied with.
Too much latitude to a SMSF then?
Many SMSF GRs are and will be unconstrained or vague in setting out process of where death benefits of a deceased member are to go without the stricture of Regulation 6.17A. Accordingly SMSF GRs that give a member a binding and final say over to whom their death benefits are to be paid need to be carefully considered when a death benefits decision is to controlled by a member in any way. A reckoning should be taken as to whether the SMSF GRs, that give a member this autonomy over their benefits; is workable, predictable and will limit opportunity for fraud on the member and the member’s family.
Non-residents* no longer have entitlement to the 50% capital gains tax discount (the Discount) on their Australian capital gains, save grandfathering, but the inverse isn’t true: Residents* can apply the Discount to foreign capital gains that meet the requirements of the Discount in their Australian tax.
The CGT discount
Obtaining the Discount principally requires:
the entity who made the gain being an individual either directly or as the beneficiary of a trust [50% discount] or a superannuation fund [33⅓% discount] : section 115-100 of the Income Tax Assessment Act [ITAA] 1997). That is the entity is not a company. Companies are ineligible for the Discount;
the CGT asset on which the gain is made was held for at least twelve months: section 115-25; and
the gain made is not otherwise treated income under the ITAA 1997. So where a gain is both assessable income and a capital gain under the ITAA 1997 the gain is not taxed as a capital gain and so the Discount cannot apply too: section 118-20.
How taxation of foreign income works
Broadly foreign capital gains are included in the Australian assessable income of a resident just as domestic capital gains are. Resident taxpayers are taxed on income from all worldwide sources: sections 6-5 and 6-10. Notable exceptions are foreign income of companies from:
their foreign branches with an permanent establishment in those foreign places: section 23AH of the ITAA 1936; and
foreign subsidiaries of Australian resident companies or where a company has non-portfolio (at least 10%) holding in a foreign company: section 768-5 of the ITAA 1997.
Foreign income, including of capital gains, of a resident is separately taxed (or exempted) under Australian tax rules even where the foreign income has been, or is to be, taxed under a foreign regime. To address the prospect of double (foreign and domestic) taxation of foreign income a foreign income tax offset (FITO) is available: Division 770 of the ITAA 1997. Australian tax on foreign income can be offset by a FITO for the foreign tax a resident taxpayer has paid, as a non-resident typically but dual tax residence is possible, in the foreign place the foreign income came from.
Double tax and double tax treaties
Australia has double (bilateral) tax treaties with many countries including all large countries and major trading partners which:
mutually allow source taxation of income of non-residents of each country (jurisdiction) at tax rates lower than both non-treaty rates and domestic rates on some forms of foreign income – this reduces foreign tax and, consequently the FITO needed to offset that foreign tax; and
provide a structure to alter domestic tax law, if need be, to prevent situations where taxpayers will be taxed in both places (double tax) on the same income.
The tax treaties reserve rights to a treaty partner to tax real estate where a taxpayer is resident in the other jurisdiction and taxation of capital gains made on the realisation of real estate, unlike typically interest, dividends and royalties, is not capped at lower rates in the treaties. Broadly this means Australian residents, as non-resident taxpayers, pay foreign capital gains taxes at rates comparable to, or even higher than, the taxes locals pay on capital gains made on foreign real estate.
It follows that foreign capital gains tax can be significant. Can this foreign tax payment be used as a FITO to offset the CGT on an Australian Discount capital gain? The FITO available to offset Discount capital gains on real estate and other investments was considered by the Full Federal Court in Burton v Commissioner of Taxation  FCAFC 141.
Burton v Commissioner of Taxation
In Burton v Commissioner of Taxation it was found that 50% only of US tax paid on a capital gain made on US investments by an Australian resident individual taxpayer was offsettable against the individual’s Australian tax as a FITO.
The reason for this finding is technical but can be understood as follows:
In essence a FITO under section 770-10 of the ITAA 1997 is strictly confined to foreign income that is subject to foreign tax. Under the Discount regime in Division 115 and under section 102-5 of the ITAA 1997 only the net capital gain after applying the Discount, which is 50% in the case of a resident individual, is included in assessable income. It follows that a component of a capital gain taxed as a foreign capital gain is not taxed in Australia where the capital gain is a discount capital gain under Division 115. That is a Discount capital gain to an Australian resident individual taxable on their worldwide income that arises from a capital gain made in the US is made up of:
50% that is taxed in the US which is included in Australia assessable income as net capital gain; and
50% that is taxed in the US but which is not included in assessable income in Australia viz. it is exempt from tax in Australia.
The Full Federal Court confirmed that a FITO is only available in relation to the first of these 50% categories. Logan J. stated at paragraphs 84 and 86:
84. Read in context, the text of s 770-10 is, in my view, fatal to the success of the alternative foundation of Mr Burton’s appeal, grounds 1 to 4 of which challenge the correctness of the conclusion adverse to him reached by the learned primary judge in relation to the allowance of foreign tax offsets under s 770-10 of the 1997 Act. An amount of foreign tax paid only counts towards a tax offset if it was paid “in respect of an amount that is all or part of an amount included in your assessable income for the year”.
86. Section 770-10 looks to “an amount that is all or part of an amount included in your assessable income for the year”. The term “assessable income” is defined in s 995-1 of the 1997 Act, which is not the same as “income” as understood for the purposes of the Convention. As defined in the 1997 Act, assessable income includes “ordinary income” (s 6-5) and, materially, what is termed “statutory income” (s 6-10). One form of statutory income included in assessable income is a net capital gain included pursuant to s 102-5(1) of the 1997 Act. As a matter of ordinary language flowing from the text of s 770-10 and, in turn, s 102-5(1), it is only the net capital gain which is, in each instance, included in Mr Burton’s assessable income. Regard to ss 6-5, 6-10 and 102-5 highlights that the phraseology “included in your assessable income” is pervasive in the 1997 Act. There is no contextual warrant for construing “included in” as extending to an amount which is used for computation of an amount that is included in assessable income. The learned primary judge (at  – ) reached just such a conclusion. That conclusion was correct, for the reasons given by his Honour.
Burton v Commissioner of Taxation  FCAFC 141 at paras. 84 and 86
This outcome is quirky and is entirely due to the laboured statutory drafting of the CGT provisions which is in part consequence of laudable efforts to rewrite and improve the Australian legislation with the advent of the ITAA 1997. If, instead, the taxation of discount capital gains had been governed by a rate set in less intelligible and obscure fine print in the Income Tax Rates Act 1986 as say 50% of the rate otherwise applicable, with that net rate to apply to the whole capital gain; then the whole of the US tax paid on the capital gain could have been offsettable as a FITO. In other words a half of the FITO would not have been lost to Mr. Burton due to the clash of legislative style with treaty terms.
But that is not the case. Accordingly Australian residents with Discount capital gains which are foreign capital gains need to ensure FITO claims in their Australian income tax return reduce the foreign tax claimed by the discount percentage to ensure no FITOs are claimed for the non-assessable/exempt component of the foreign capital gain that technically arises under the Australian CGT legislation.
*In this post resident and non-resident respectively mean resident and non-resident for tax purposes: see “resident of Australia” defined in sub-section 6(1) of the ITAA 1936.
A common mistake, misstep or omission on setting up a family discretionary trust (FDT) or other kinds of trusts is to use the Australian Business Number (ABN) of the trustee of the trust, typically a proprietary company, rather than to obtain and use a separate ABN after the trust has been established to run a business or enterprise.
Situations where this can happen include:
an ABN application form is completed incorrectly for the company without correctly identifying the FDT as the entity to which the application applies;
early application for the ABN is made by the company for an ABN, say so the company can say, open a bank account before the trust formation; or
the company is already doing other things and has an ABN already.
In each of these situations a client of an accountant can be tempted to use the ABN already to hand for the FDT. A client so tempted may well think – my accountant can sort this out later!
ABN for the wrong entity
It’s a clear mistake as a trust is clearly a separate entity to the company. An entity that can obtain an ABN under the A New Tax System (Australian Business Number) Act 1999 is equivalent to an entity as defined under the companion GST legislation which is:
(1) Entity means any of the following:
(a) an individual;
(b) a body corporate;
(c) a corporation sole;
(d) a body politic;
(e) a partnership;
(f) any other unincorporated association or body of persons;
(g) a trust;
(h) a superannuation fund.
Note: The term entity is used in a number of different but related senses. It covers all kinds of legal persons. It also covers groups of legal persons, and other things, that in practice are treated as having a separate identity in the same way as a legal person does.
sub-section 184-1(1) of the A New Tax System (Goods And Services Tax) Act 1999
which also conforms with other definitions of entity in the Income Tax Assessment Acts (ITAAs). Its clear that a company can have an ABN and a trust with a company as its trustee can and should separately obtain another ABN where the trust is to carry on an enterprise requiring an ABN.
The usual trust implementation
The usual implementation of an asset protected FDT is to set up the FDT with a corporate trustee with limited liability where the company is to be a dormant company. That is the company will have modest nominal share capital so it can register as a proprietary company with the Australian Securities and Investments Commission (ASIC) but the company will not have business or other substantive assets or liabilities on its own behalf as all intended activity of the FDT will be as the trustee of the FDT.
The company must have a right to be indemnified out of the property of the FDT so that the directors will not be personally liable for the debts of the trust under section 197 of the Corporations Act 2001 but, in terms of the balance sheet of the corporate trustee of a FDT, that right and the share capital are about the only few assets the company needs in the role of trustee of a FDT.
Impact of the wrong ABN
But if an ABN for the company is quoted on bank accounts and on invoices then the Australian Taxation Office (ATO) and all others concerned with the business are informed that transactions thought to be made by the FDT for its business are made by the company in its own right. The accountant for the FDT will have little choice but to record the transactions as transactions of the company in its own right and prepare the accounts of the company accordingly. Significant penalties can apply if the company persists with a position that it was quoting the ABN of the company for activity of an entity without an ABN rather than for activity in its own right.
So instead of the accounts of the company being dormant and those of the FDT being active, the business transactions will go to the accounts of the company and nothing will happen on FDT accounts and the implementation of the trust to operate the business will misfire.
If the business is being run under a business name, where the ABN of the company was used to apply for and obtain the business name, then the ATO and all others concerned with the business will view and treat the business name as a business name of the company and not the FDT.
Fixing the problem – reverting to the trust structure
This is one of those problems that can’t be fixed retrospectively without penalty trouble – the ABN has been quoted and relied on, but the problem can be fixed going forward.
Get the right ABN
The FDT can belatedly apply for an ABN. It is possible for an ABN to have retrospective application viz. the ABN can take effect from a date nominated by the applicant some time prior to the time of the application. But the ABN taking earlier effect won’t cure the problem of where the wrong ABN has been quoted since then.
Restore the company balance sheet
The company shouldn’t need to be voluntarily liquidated but a comparable internal process can be done to transfer the assets and liabilities in the accounts of the company to the FDT and to restore the balance sheet of the company to the modest assets described under The usual trust implementation above from a set fix or changeover date. If the problem is picked up early enough – it should be! –significant income tax profit and capital gains tax exposures of transferring assets to the FDT that may require remedy such as the small business restructure rollover in Division 328-G of the ITAA 1997 may not necessarily be needed to reset the company balance sheet.
Coping with the administrative consequences of changeover
If a client of an accountant has put itself into this sort of tangle it is likely that the client will struggle with this remedial action too which presents some administrative challenges as the client is now dealing with, effectively, two discrete businesses before and after the changeover day: The business initially carried on by the company with its ABN and then the business carried on by the FDT with its ABN from the changeover day.
It is important that the accounting and administrative team of the client (the Team) can pinpoint company period transactions before the changeover date and FDT period transactions that happen after the changeover day.
So a further element of the fix proposed here is to change the name of the company and for the Team to be meticulous about changing processes and stationery etc. to the new company name once the changeover day happens and the FDT period is underway.
There is an ASIC cost to change the name of the company and stationery etc., and time of the Team to manage all of this, but that cost should be considered in the context of alternatives that are costlier such as to voluntarily liquidate the company, to start afresh with an entirely new business structure to get the ABN process right or to abandon plans to use the FDT structure altogether.
A common technique for a name change for a company running a business, when a name change isn’t really wanted for public facing reasons; is to change NameOfCompany Pty. Ltd. to say NameOfCompany (Aust.) Pty. Ltd. This can help the Team and its customers to apply the right ABN and to get the accounting right (e.g. sales put through the right books of the two distinct entities NameOfCompany Pty. Ltd. to NameOfCompany (Aust.) Pty. Ltd (as trustee for the FDT) in this example for before and after changeover day transactions.
Unless something like this is done the Team and customers of the business might get very confused and might not manage the transition to the FDT as sought all along.
Impact of name change on the appointed FDT trustee
Unlike a liquidation of the company, after which a new trustee of the trust would need to be set up and appointed, a name change won’t affect the position of the company as the trustee of the trust.
Only a partial exemption from capital gains tax (CGT) is available to the extent a main residence is used for an income-producing use: section 118-190 of the Income Tax Assessment Act (ITAA) 1997.
As the CGT main residence exemption is, or can be, so valuable – there is often no bigger tax break to an individual in their lifetime; an individual working in their business or their employment from a home they own will be looking to preserve the full CGT main residence exemption (MRE) where they can.
Setting the scene
For most taxpayers opportunity to claim the full CGT MRE will be straight forward. The Australian Taxation Office (ATO) website
re-assures a home owner simply working from home from a desk, chair and a computer that a full CGT MRE will be available where the ATO states:
Generally, when you sell your home CGT doesn’t apply. However, if you used any part of your home for business purposes, you may have to pay CGT. CGT won’t apply if any of the following occurred with your home-based business:
– You operated your business from a rented home.
– You didn’t have an area specifically set aside for your business activities.
– You operated your business through a company or trust.
You only have to pay CGT for periods when you used your home for your business.
But the ATO’s page isn’t the whole story. The ATO’s first dot point is so obvious that it shouldn’t be in the list but is helpful to any renters that may happen on to this page of course. The ATO’s second dot point is reassuring especially as all that is physically needed by many workers working from home is that chair, desk and computer. This derives from the distinction between homes with a place of business and those not with a place of business and how they are treated for the CGT MRE considered later in this blog. The third dot point is partly right. What about, though, where a related company or trust, which is a separate entity to an individual owning his or her home:
pays rent to the owner for the use of the home?; or
meets or helps meet the expenses of the owner of the home?
Separate entity – related company or trust
Let’s say Fred owns his own home and Fred has a related company from which Fred conducts his business from home. If the company rents a room in the home then the CGT MRE is reduced to a partial CGT exemption when Fred sells his home as:
Fred has earned rental income from the company, a separate legal entity; and
Fred will either have deducted, or could have deducted, interest on money borrowed put to the home, if any – see paragraph 118-190(1)(c) and sub-section 118-190(2);
as section 118-190 then applies.
Don’t charge rent
If Fred is the sole owner of his company then an obvious first measure of tax planning to ensure Fred keeps the full CGT MRE is for Fred not to charge rent to the company.
But where Fred charges no rent to the company this has implications for expenses like heating and cooling and other expenses Fred incurs, and has no rent to cover, when the company occupies his home for no charge and carries on its business from there remembering:
Fred is not entitled to deduction for the expenses of his company which is a separate entity to him and which are essentially private to him; and
the company is not entitled to a deduction for expenses for which Fred, rather than the company, is responsible even where the company pays those expenses (without considering fringe benefits tax implications where Fred is also an employee of the company as well as a shareholder).
Can the company instead reimburse Fred, sustain deductions for the expenses of the home it meets as business expenses and not disturb the CGT MRE position of Fred?
Legalities – a licence!
Firstly the company is, as stated, a separate legal entity to Fred. To clarify its basis for using Fred’s home, the company and Fred should document what the company can do at his home.
Secondly a document between Fred and the company under which the company can enter and use Fred’s home to run its business without paying rent to Fred is likely not a lease. It is a licence to enter the home granted by Fred and to do the things at the home which Fred allows the company to do under the licence.
Thirdly the licence terms can specify and delimit the home expenses of Fred which the company will reimburse to Fred.
Running expenses vs. occupancy expenses
The Commissioner of Taxation’s Taxation Ruling TR 93/30 Income tax: deductions for home office expenses explains two significant dichotomies:
Firstly TR 93/30 distinguishes between running expenses, being the costs of living at a home, and occupancy expenses which are the costs of owning a home. These examples are given:
Occupancy expenses – relating to ownership or use of a home which are not affected by the taxpayer’s income earning activities (i.e., occupancy expenses). These include rent, mortgage interest, municipal and water rates, land taxes and house insurance premiums.
Running expenses – relating to the use of facilities within the home. These include electricity charges for heating/cooling, lighting, cleaning costs, depreciation, leasing charges and the cost of repairs on items of furniture and furnishings in the office.
Paragraph 6 of TR 93/30
Secondly, from the tax cases on the issue, TR 93/30 draws a distinction between an area of a home to be treated as a place of business and an area of a home which is not to be so treated. This ties back to the ATO observation in the second dot point on Home-based business and CGT implications about a part of a home specifically set aside for business activities.
Safe harbour for a full CGT MRE
To my mind a CGT MRE safe harbour for Fred would be for the licence:
to allow Fred reimbursement by the company for running expenses related to the use of the home by the company for business purposes; and
to preclude reimbursement by the company for occupancy expenses;
to Fred. Then the ATO would have no reason to treat payments by the company to Fred or payments by the company to meet expenses of the home on Fred’s behalf as either rent or as contributions to Fred’s occupancy expenses so that the CGT MRE of Fred then diminishes to a partial exemption where these payments do not exceed the applicable running expenses that Fred can recover under the licence.
On the other hand a reimbursement of occupancy expenses to Fred is an indicator to the ATO that Fred is allowing a physical part of the home itself, whether or not that part is a place of business or not based on the indicators of a place of business described in TR 93/30 (see below), to be used by the company in its business to earn income and a notional apportionment between use as a main residence and income earning leading to a diminished partial CGT MRE under section 118-195 might then follow.
Sole trader or partnership
Where the owner of the home is a sole trader, or where the owners of the home are carrying on a business in partnership, then the issue of licence to enter and use the home and reimbursement of home expenses to owners as separate entities won’t arise.
In those cases closely abiding by TR 93/30 can give home owners working from home safe harbour from a partial CGT MRE so long as:
1. the home has no place of business viz like:
the area is clearly identifiable as a place of business;
the area is not readily suitable or adaptable for use for private or domestic purposes in association with the home generally;
the area is used exclusively or almost exclusively for carrying on a business; or
the area is used regularly for visits of clients or customers.
from paragraph 5 of TR 93/30. A home-based doctor’s surgery is given as an example of a place of business in paragraph 4 of TR 93/30.
2. tax deduction claims by the sole trader or partnership are constrained to running expenses and occupancy expenses are excluded from those tax deduction claims.
In the meantime the Commissioner has appealed Logan J.’s decision in Guardian AIT to the Full Federal Court. The Commissioner has also released a suite of “draft products” which set out the compliance approach of the Commissioner relating to reimbursement agreements under section 100A of the Income Tax Assessment Act (ITAA) 1936:
Draft Taxation Determination TD 2022/D1 Income tax: Division 7A: when will an unpaid present entitlement or amount held on sub-trust become the provision of ‘financial accommodation’?
Taxpayer Alert TA 2022/1 Trusts: parents benefitting from the trust entitlements of their children over 18 years of age
Evolution of the draft products
The suite clearly evolves from a similar suite finalised nearly twelve years ago which included Taxation Ruling TR 2010/3 Income tax: Division 7A loans: trust entitlements and Practice Statement Law Administration PS LA 2010/4 Division 7A: trust entitlements which focused on unpaid present entitlements of private companies, deemed loans and sub trusts. The Commissioner now takes a tougher line, prospectively, on what is a financial accommodation and thus a deemed loan for the purposes of Division 7A of the ITAA 1936 in TD 2022/D1. A company will need to demand immediate payment when it becomes aware of and has an unpaid present entitlement (UPE) to income of a trust. There will still be a financial accommodation, despite arrangement to pay a commercial rate of interest, which will be enough to be deemed loan and potentially a deemed dividend. Section 109N of the ITAA 1936 complying loan terms are needed so that UPE will not trigger a deemed dividend under section 109D.
This does not appear to be a relevant matter in Full Federal Court appeal in Guardian AIT in relation to the the bucket company dividend washing machine (BCDWS) arrangement used in that case. Under that BCDWS a dividend was declared by the bucket company back to the Australian Investment Trust (AIT) in the window allowed for a private company debit loan before the income tax return for the bucket company was due. That declaration is a prompt if not immediate action to extinguish any financial accommodation by the bucket company to the AIT.
The dividend washing machine arrangement comes up as Red zone scenario 2 in paragraphs 33 to 36 of PCG 2022/D1 where red zone activity in PCG 2022/D1 is activity at high risk for ATO action with compliance resources. It is not expected that, even if the Commissioner is unsuccessful in the Full Federal Court case in Guardian AIT, the BCDWS will be reclassified out of the red zone and will become an acceptable tax practice.
Repercussions of Guardian AIT?
It remains to be seen whether section 100A risks addressed in the draft products will align with Guardian AIT following the Commissioner’s appeal. Will higher courts adopt Logan J.’s understanding of the facts which accepted the BCDWS as an ordinary family or commercial dealing?
Perhaps more problematic for the Commissioner will be to convince a higher court that there was a reimbursement agreement at all in Guardian AIT. Logan J.’s findings that there was no timely reimbursement agreement for the bucket company to pay dividends to the Australian Investment Trust, and no plausible counterfactual as to whom otherwise the trustee of the Australian Investment Trust would have distributed income of that trust had it not been distributed to the Australian Investment Trust, meant the Commissioner could not make out a reimbursement agreement to which section 100A could apply.
In running the appeal the Commissioner may run the risk that the Full Federal Court will establish authority that section 100A cannot readily apply where the impugned distributions to which the Commissioner seeks to apply section 100A is made to immediate family members such as Simon and Sam in Example 7 in paragraphs 85 to 92 of PCG 2022/D1.
Example 7 – amounts provided to the parent in respect of expenses incurred before the beneficiary turns 18 years of age
85. Brown Trust’s beneficiaries include the members of the Brown Family. Brown Co is the trustee of Brown Trust, and Bronwyn Brown is the sole shareholder and director of the trustee.
86. Bronwyn is the parent of three adult children; Sandra (aged 26), Simon (aged 21) and Sam (aged 19).
87. During the 2022-23 income year, Sandra is self-employed and has a taxable income of $90,000. Simon and Sam study full-time and derive no income during the income year. Bronwyn’s children live at home with her at all times throughout the income year.
88. During the 2022-23 income year, Brown Trust derives $240,000 in income (the trust’s net income is also $240,000). Throughout that year, Brown Co makes regular payments totalling $240,000 into Bronwyn’s bank account. Those payments are recorded as a ‘beneficiary loan’ in the accounts of Brown Trust. Bronwyn uses these amounts throughout the year to meet her personal living expenses and those of the household.
89. On 30 June 2023, Brown Co resolves to make Simon and Sam each presently entitled to $120,000 of the Brown Trust income.
90. Brown Co applies their entitlements against the beneficiary loan owed by Bronwyn. The entitlements of Simon and Sam are each recorded as having been fully paid in the accounts of Brown Trust. Bronwyn assists in the preparation of Simon and Sam’s tax returns and pays the tax liability arising in relation to their entitlements from her personal funds.
91. The entitlements of Simon and Sam are applied in this manner because they each purportedly have an outstanding debt owed to Bronwyn in respect of education expenses and their share of the Brown household expenses that Bronwyn paid before they each turned 18.
92. Diagram 10 of this Guideline illustrates the circumstances in this example.
Example 7 in PCG 2022/D1
Under sub-section 100(8) an agreement is carved out from being a reimbursement agreement unless there is what the Commissioner refers to as the tax reduction purpose.
Even though a distribution in that Example 7 to Bronwyn was a “lawful possibility” why “would have” distributions made to Simon and Sam (assuming the distributions were real and genuine) who are equally family beneficiaries with Bronwyn have been made to Bronwyn? Isn’t the true issue that the trust distributions to Simon and Sam are a sham and that Simon and Sam did not have a real entitlement and so are not presently entitled to the distributions in the first place?
The Commissioner appears to be reliant on the Full Federal Court agreeing with the construction of sub-section 100A(8) expressed in paragraphs 156 to 158 of Draft Taxation Ruling TR 2022/D1 Income tax: section 100A reimbursement agreements rather than the construction of that sub-section preferred by Logan J.
This blog post is about tax avoidance. That is not apparent from the odd title of this blog which I should explain:
A bucket company is a private company included as a beneficiary of a trust and is used to receive income of a trust. It is a popular discretionary trust strategy for a trust to distribute trust income to a bucket company as a beneficiary of the trust when, as at present, company income tax rates are lower than income tax rates:
for beneficiaries who are individuals typically on significant incomes (individual beneficiaries); and
the (can be even higher – highest marginal) rate generally paid when no beneficiary receives (technically: is distributed or becomes presently entitled to) the income of the trust;
(the Higher Rates).
Thus the “bucket” takes the overflow of trust income which the trustee or trust doesn’t wish:
to flow to high income individual beneficiaries; and
to be taxed at their higher rates.
Not considered tax avoidance
The Commissioner of Taxation (Commissioner) doesn’t view the simple use of a bucket company as a beneficiary of a trust as tax avoidance. That is the case even though less tax will be collected from a trust’s trustee and beneficiaries when the Higher Rates won’t be paid by the trustee and the beneficiaries of the trust when a BC beneficiary is used. There are measures in place: notably the deemed dividend anti-avoidance rules in Division 7A of Part III of the Income Tax Assessment Act (ITAA) 1936 (Div 7A), which generally give the Commissioner assurance that:
a private company is a no mere lowly taxed conduit or way for high income individual individuals to receive trust income; and so
value either within and distributed to a private company stay within the company or are otherwise treated as non-frankable shareholder/associate dividends they are deemed to receive and to be taxable on.
The washing machine
The bucket company dividend washing machine (BCDWS) though pushes the Commissioner’s tolerance for the bucket company tax strategy.
The BCDWS is like this:
A family discretionary trust (FDT) makes a substantial distribution of trust income (Distribution 1) to a bucket company (BC) in Year 1.
Distribution 1 is not paid and thus becomes an unpaid present entitlement owed to BC by FDT to be paid later.
BC is taxable on Distribution 1 in Year 1 at the company rate which is lower than the Higher Rates.
In Year 2, but in the window before the income tax return for BC is due, and thus before Div 7A treats Distribution 1 to BC to be a deemed dividend based on the analysis of when unpaid present entitlements, including unpaid present entitlements of companies in trust income, can be loans and deemed dividends in Taxation Ruling TR 2010/3 Income tax: Division 7A loans: trust entitlements; the bucket company declares and pays a dividend to cover Distribution 1.
BC has franking credits to frank the dividend from the payment of tax as a beneficiary on Distribution 1.
The sole shareholder of BC entitled to the dividends is the (trustee of) FDT which has been set up as the owner of the shares in BC that can participate in these dividends.
No actual payment is required as Distribution 1 has gone around the washing machine and has come back to FDT in Year 2 as dividends fully franked by BC.
So in Year 2 the trustee of FDT distributes Distribution 2 of the same amount as Distribution 1 to BC again. It is again unpaid until early in Year 3. The distribution is fully franked which is how the dividends were received from BC so there is no further tax for BC to pay.
The arrangement can be repeated on and on.
By using a concession in Div 7A, the BCDWS in effect enables BC to access a lower company income tax rate for an amount which is not actually paid over or intended to be paid over to a beneficiary but circulates back to the trustee.
Income tax rate integrity problem
So it’s like the trustee is accumulating the income and never having to pay it to a beneficiary but paying less tax as if the income had been paid to a company.
Understandably the Commissioner is concerned with the integrity of income tax rates, and the particularly the integrity of the Higher Rates including the highest marginal rate applicable where no beneficiary is presently entitled to income under section 99A of the ITAA 1936. The Commissioner would like to see that the BCDWS will have the same rate outcome. It does if a BCDWS is a trust reimbursement agreement: a share of trust income arising from a section 100A reimbursement agreement is deemed to be income to which no beneficiary is presently entitled: sub-section 100A(1).
Guardian AIT Pty Ltd ATF Australian Investment Trust v Commissioner of Taxation
The Commissioner’s observation in example 5 is put into doubt by the December 2021 Federal Court case Guardian AIT Pty Ltd ATF Australian Investment Trust v. Commissioner of Taxation  FCA 1619. In that case the Commissioner was unsuccessful assessing a BCDWS using anti-avoidance tax laws including section 100A. The taxpayer’s appeal to the Federal Court concerned the Commissioner’s assessments applying the anti-avoidance provisions in section 100A and, alternatively, based on the general anti-avoidance provisions in Part IVA of the ITAA 1936.
Logan J. found that there was no reimbursement agreement and that Part IVA didn’t apply.
The Commissioner had at least these significant difficulties in making out that the BCDWS in the case was a reimbursement agreement:
firstly, that there was any agreement to which sub-section 100A(7) and (8) could apply, and particularly establishing a counterfactual as to whether Mr. Springer, who controlled Guardian AIT Pty Ltd, would have been liable to pay income tax had the “agreement” not been implemented;
secondly, that there was provision of “payment of money or the transfer of property to, or the provision of services or other benefits for, a person or persons other than the beneficiary …” under that agreement: sub-section 100A(7); and
thirdly, that the agreement was not an ordinary family or commercial dealing: sub-section 100A(13).
Mr. Springer was wealthy and conducted a well prepared case before the Federal Court in which the taxpayer was able to establish that the BC, Guardian AIT Pty Ltd, had not been set up with the intent, understanding or expectation that the BC would pay dividends back to the Australian Investment Trust (the FDT). That is what eventually transpired though, and a BCDWS, largely as described above and in the Commissioner’s example 5 happened.
There must be an agreement first
Logan J. accepted that even though it was legally possible for the BC to pay the dividends to the FDT there was no evidence of any timely agreement or plan (my words) to do so. To make out a section 100A reimbursement agreement the Commissioner had to make out that there was “agreement” (though widely defined) between the FDT and its beneficiary/ies before BC started paying dividends to the FDT to make the income tax saving.
Counterfactual not accepted
Logan J. found the Commissioner’s counterfactual under the section 100A(8) “would have been” hypothetical: that Mr. Springer personally would have been liable to pay income tax, that is Mr. Springer would presumably have to have been the beneficiary presently entitled to the income distributed to the BC rather than the BC, had it not been for the reimbursement agreement, could not be reconciled with the evidence in the case.
· payment, transfer etc.
Logan J. did not accept that there has provision for a payment , transfer etc. to another beneficiary…. The BC was a related entity of Mr. Springer that was a beneficiary of the FDT and a part of the family structure in its own right (that incidentally happened to be on a lower tax rate as an income beneficiary).
Unlike with a unrelated entity that takes, say, a payment to be made a beneficiary of trust income in a trust stripping, which is the use of trusts abuse to which section 100A is directed; the BC in this case can be seen as a beneficiary related to and having no reason for such arm’s length like dealing with Mr. Springer or other members of his family.
· ordinary family or commercial dealing
Section 100A was introduced to combat trust stripping typically involving unrelated parties (see Federal Commissioner of Taxation v Prestige Motors Pty Ltd (1998) 82 FCR 195) and “specially introduced beneficiaries having a fiscally advantageous status” particularly. Logan J. did not accept that this characterisation applied to the BC, Guardian AIT Pty Ltd. From the evidence Logan J. found that the implementation and use of Guardian AIT Pty Ltd as a “clean” (for instance, no carry forward losses or other utilisable positive tax attributes) company beneficiary of the FDT, Australian Investment Trust, was an ordinary family dealing.
Guardian AIT confirms that a reimbursement agreement contains a number of technical elements that the Commissioner can be hard pressed to establish where a taxpayer produces facts contrary to the Commissioner’s position on them. These elements can make section 100A, as a tool in the anti-tax avoidance armoury of the Commissioner, ill-suited to enforce the integrity of the Higher Rates applicable to trust income and the rate applicable under section 99A of the ITAA 1936 where there is no beneficiary presently entitled to income in particular. That is not to say that the Commissioner should not endeavour to enforce that integrity.
Based on authority referred to in Guardian AIT Logan J. was unwilling to accept that the reimbursement agreement rules in section 100A, directed as they are to the contrived introduction of specially introduced beneficiaries with a fiscally advantageous status, had application to a clean company introduced within Mr. Springer’s family structure despite the overtly unplanned tax arbitrage Mr. Springer could achieve due to the lower company income tax rate.
There is the prospect that the Commissioner will appeal to the Full Federal Court. The government could better protect the integrity of the trust tax rates with specific amendment so that circulating BCDWS distributions, which do or must have some aspect of artificiality or contrivance by virtue or their circularity or non-distribution, attracted the highest marginal rate of tax without the Commissioner having to contest assessments based on section 100A and Part IVA attack or sham characterisation which are more costly, fraught and complicated for the Commissioner to prosecute.
Proprietary company setups are not all the same. The $512 ASIC registration fee doesn’t get you a constitution for your company. Company constitutions vary and are on a quality spectrum and quality can count just like with any product.
Is a company constitution worth having?
A company set up without a constitution gets a one size fits call called the replaceable rules which gives a bare bones way for the company, and those involved in it, to operate. One size fits all can lead to a unintended outcomes. For instance an often unforeseen, easy to trip, requirement is to notify other directors of a conflict of interest between a director and the company. A properly tailored company constitution can modify conflict of interest rules away from the one size fits all to suit a company where only mum and dad are directors. Failure to do this can get weaponised like, say, when directors get divorced. And don’t think that this is the only reason why the replaceable rules may be a poor fit for your company.
Getting a capital structure of a company right
I do work sorting out situations made worse because companies are not understood by those setting them up. A company’s ideal capital structure is a big issue when a company is acting in its own right and not a trustee. Unless you understand the impact of s112-20 of the ITAA 1997 on the issue of shares in the company you’re a big chance to pay more capital gains tax that you might have when you sell or exit out of a company that has grown.
Company capital structure fails can lead to unnecessary loss of small business CGT concessions for small business which can amount to a big economic cost where a company ends up being a good business.
Getting “my” money out of a company
Shareholders try to get “their” money out of a company following a poorly executed lawyer free setup is another world of grief which can ironically bring in the lawyers, the ATO and expensive insolvency specialists.
A reckoning on death
Lots of problems don’t show up until a shareholder dies. This is often when the problem comes to my desk. It is sad when a family is tied in knots because their company establishment going way back was stuffed up. Any company setup, whichever way, might seem the same through times of smooth sailing. Why bother with the pesky paperwork at all? Wait, too, until the shareholders divorce, a fight amongst shareholders ensues or there is trading or tax trouble with the company: a sudden turn of interest, then, in the company’s capital, structure and records.
The “professional services” industry – escape for profit
Most of the non-legal providers on the internet are suss. They are derived from the offshore tax haven shell company “professional services” industry or use their business model. ICIJ media gives you an idea of their ethics https://cutt.ly/oUO7bvW and how they help their customers deal with local rules and commitments (not). Their model is to hide and escape from them.
Company constitutions, trust and SMSF deeds and partnership agreements are legal documents, and these providers are there to help you escape from having to get them from a lawyer charging a fee who is ethically obliged to professionally prepare them and whose work is covered by a professional indemnity/negligence insurance to protect you. And what about these rights? What a solicitor must tell you https://go.ly/P0jLU Worth having?
Their model is often something like this: we are not lawyers, so we give you escape from lawyers with this service. But we offer documents which are (based on) documents authored by a lawyer.
Reality check on unqualified legal practice
However you take this double-think pitch on the merits of avoiding lawyers, a reality is that the model is illegal: see the Federal Court case of Australian Competition & Consumer Commission v. Murray  FCA 1252 https://jade.io/article/106192 to appreciate how documents supplied this way is from an unqualified legal practice source.
There is a misconception that lawyers in this space are not worth the fees. I, for one, reckon my operation is lean and mean. And there are others like me. Sure my company and trust setup services cost a little more because my setups involve me thinking about and taking responsibility for what I am asked to do, and guiding clients on their setup choices based on what I know about them and thirty-five years’ experience of the ever changing traps – and that can’t be done by AI, yet.
What you get
So I can’t “compete” with a non-thinking service which gives you a company, trust of SMSF setup from a sausage cutter: documents all done and delivered instantaneously, with your credit card charged just as fast. But you get my drift: this blindingly impressive service just may be just too fast, hassle-free and brain-free. Look at the fine print (hello accountants) about who takes responsibility for loss if anything, including data inputs for which the inputter is made fully responsible, turn out not quite right.
So I agree. It could be better to go to a dentist than the cheapest guy with a drill.
This post is actually from a post I made to another blog. I think it’s worth another post on this blog even though it’s a more unruly and uncompromising than my usual posts here!
Impending change to the individual Australian income tax residence rules
A measure in the Federal Budget 2021–22 is to replace the current individual tax residence rules with residency tripwires for an individuals who are tax resident where an individual is any one of:
ordinarily resident in Australia (resides test) – based on legal case precedent;
has an Australian domicile (domicile test) – which can activate unless the Commissioner of Taxation (Commissioner) is satisfied the permanent place of abode of the individual is outside of Australia;
present in Australia for more than a half of the year of income (183 day test) – which can activate unless the habitual place of abode of the individual is outside of Australia and the Commissioner is satisfied that the individual does not intend to take up residence in Australia ; or
a member of certain government superannuation funds;
in a year of income with an “improved and simplified” individual tax residence test based on:
a bright-line test derived from the 183 day test under which an individual who is physically present in Australia for more than 183 days are taken to be resident; and
the prospect of still being a resident nonetheless “in more complex cases” where the individual is physically present in Australia for less than 183 days such as where an individual is physically present for 45 days or more and has two or more of these other attributes/triggers of Australian tax residence:
a right to reside permanently in Australia;
Australian family; and
Australian economic interests.
(45 day triggers) based on recommendations of the Board of Taxation. The reform of the individual tax residence rules is justified in the announcement on the grounds that the current rules are difficult to apply, create uncertainty and result in high compliance costs, including need to seek “third-party” aka professional advice, despite individuals having otherwise simple tax affairs.
Sanderson v. Commissioner of Taxation
The recent case of Sanderson v. Commissioner of Taxation  AATA 4305 is an instance of an individual unsuccessfully running his tax residence appeal under the current rules without professional representation. Mr. Sanderson may or may not have had simple tax affairs but, in any case, the Administrative Appeals Tribunal decision reveals he had an income of $494,668 in the 2016 income year in dispute which suggests professional advice and representation might have been accessible to help him resist the adverse outcomes of his tax appeal.
Self-representation – the statistical ugliness
Self-represented taxpayers can run their own tax appeal and, in the Tribunal at least, rules of evidence and other procedural requirements are relaxed so that a person without legal training can so present their case.
In most tax appeals against income tax assessments, brought to either the Tribunal or the Federal Court, the Commissioner succeeds where the appeals progress to full hearing and decision. When the statistics concerning cases where appellants who are professionally represented and appellants who are self-represented are compared the proportion of Commissioner wins becomes even more lop-sided. As someone involved as a representative in, and who follows, these cases I can conclude that tax appeals, where self-represented taxpayers take the Commissioner on and succeed, are rare and reflect that self-represented taxpayers:
struggle to comprehend complex tax laws, understand them in context or appreciate how to present contentions about their case in a contested environment; and
do not appreciate how facts relevant to their case need to be presented so those facts are accepted or likely accepted as evidence.
As the Budget measures and Board of Taxation suggest, the current individual tax residence rules have amplified challenges for a self-represented appellant to the Tribunal in a tax residence case that made likelihood of success for Mr. Sanderson even more remote. As I have noted in this blog in many places (see the Onus tag) the burden of proof of facts in tax appeals is with the taxpayer but there is more that can go wrong with evidence in tax appeal cases than that. In Sanderson Senior Member Olding of the Tribunal made these findings about the evidence concerning the taxpayer in the case:
29. One is the manner in which Mr Sanderson completed incoming passenger cards when he returned to Australia. He declared that he was a ‘Resident returning to Australia’ and on various cards indicated an intention to stay in Australia for the next 12 months. Mr Sanderson’s response to cross-examination about the passenger cards – ‘I guess I lied on the form’ – does not help his credibility, but is probably correct in respect of the latter question since his stays were for less than 12 months.
 Transcript of proceedings, P-46, ln 27.
30. Another is a loan application form completed by Mr Sanderson in March 2011. The Benowa property was listed as Mr Sanderson’s residential address with the status box ‘Own home’ selected and the property described as ‘live in’. Again, Mr Sanderson’s response to questioning – ‘Maybe I lied to get the loan I don’t know. I don’t recall.’ – was unhelpful. What is clear is that either the statement was not accurate or Mr Sanderson’s evidence that he did not intend to live in the home at the time was not truthful; both statements cannot be correct.
Sanderson v. Commissioner of Taxation  AATA 4305 at paragraphs 29-30
As Senior Member Olding observes, propensity to lie revealed in evidence in a tax appeal depletes credibility of a taxpayer which is generally decisive in a case against the Commissioner whose officers and witnesses are usually thoroughly credible. So the Commissioner’s witnesses will be believed and the taxpayer won’t be believed about contested questions of fact with near inevitable consequences.
Self-represented taxpayers often over-estimate how persuasive their own statements of fact and intent will be in a tax appeal forum. In Sanderson Senior Member Olding reminds us that a taxpayer’s self-serving evidence needs to be approached with caution:
Has Mr Sanderson proved the amounts transferred to his account were repayments of loans?
38. In approaching this issue, I am mindful of two judicial warnings. One is that self-serving evidence of taxpayers should be approach (sic.) with caution. The other is that nevertheless a taxpayer’s evidence should not be regarded as prima facie unacceptable unless corroborated.
 Imperial Bottleshops Pty Ltd v Commissioner of Taxation (1991) 22 ATR 148, 155; and generally: Federal Commissioner of Taxation v Cassaniti  FCAFC 212.
Sanderson v. Commissioner of Taxation  AATA 4305 at paragraph 38
The resides test and the weight of facts
So the evidence in Sanderson accepted by the Tribunal diverged from how the taxpayer tried to present it. It transpired that Mr. Sanderson, who had spent 83 days in Australia in the 2016 income year, and was claiming not to be a tax resident of Australia was found by the Tribunal to have:
had a home in Benowa on the Gold Coast with his family;
business interests in Australia;
returned to Australia in the 2016 income year for business purposes where the Sanderson Group maintained a serviced office;
held directorships in Australian companies which he had had for some 30 years by 2016;
had access, with his wife, to a company car in Australia which he regarded as his own vehicle;
been treated by medical professionals in Australia with whom he had longstanding relationships; and
maintained Medicare and medical insurance coverage in Australia, although he also had health insurance coverage elsewhere;
in that income year.
From those findings the Tribunal decided that the taxpayer was ordinarily resident in Australia (viz. satisfied the resides test) and, based on that decision, it was unnecessary, according to the Tribunal, for the Tribunal to consider the domicile test. Although the taxpayer was an Australian citizen, thus clearly with Australian domicile, the issue with the domicile test would have been whether the Commissioner should have been satisfied or not that the taxpayer had a permanent place of abode outside of Australia.
What might a professional representative have contributed?
A saving in time and resources may have been achieved if this case had been professionally evaluated at an early juncture. Evidence where the taxpayer eventually admitted to lying could have been considered to understand how detrimental it would be, how it would come across and whether it deprived the taxpayer of realistic prospect of success in the case.
Professional advice could have been taken about the exceptional nature of cases where taxpayers, whose immediate families were living in Australia, had successfully established that they were not tax residents of Australia. A notable instance of an exceptional case is Pike v. Commissioner of Taxation  FCA 2185 which I considered in my December 2019 blog – Tax residence – is it administrable after Pike? https://wp.me/p6T4vg-gW. In Pike the taxpayer was accepted as a credible witness able to establish that he was residing in Thailand while his family lived in Australia at the times in dispute. Mr. Pike’s connections to Australia were comparatively more tenuous to Australia than Mr. Sanderson’s.
In the conduct of Sanderson, the self-represented taxpayer appears not to have raised or agitated the question of residence under the relevant double tax agreement (DTA) which was a key matter in Pike. Despite the long list of factors on which the Tribunal could find that Mr. Sanderson was ordinarily resident in Australia, a taxpayer can still assert that a “tie-breaker” provision in an applicable DTA, where the taxpayer is ordinarily resident in both places (a dual resident), applies to make the taxpayer not ordinarily resident in Australia by virtue of the DTA. Perhaps the taxpayer in Sanderson could have contended that he was a resident of Malaysia who had been lodging income tax returns in Malaysia and that he should have been treated as a resident of Malaysia under the Australia Malaysia DTA?
Or maybe these inferences shouldn’t be drawn from the Tribunal’s decision? We’ll never know, of course, because the taxpayer opted to self-represent.
And what would have happened under the reform had it been the individual tax residence regime?
The taxpayer in Sanderson would not have been a resident under the “bright-line” 183 day test having spent 83 days in Australia in the relevant income year. However, as the taxpayer spent more than 45 days in Australia and these 45 day triggers are enlivened as the taxpayer had:
a right to reside permanently in Australia;
Australian accommodation; and
Australian economic interests,
two of the 45 day triggers are enough to cause the taxpayer to be hypothetically treated as a tax resident of Australia under the reform.
Some other thoughts on the 45 day triggers
This deceptively simple outcome expected in future under the reform is in tension with DTAs and international taxing norms where other countries will generally be looking to tax individuals, present in their country for up to around 320 days (365 – 45) in the country’s fiscal year, as tax resident in their country. Situations were individuals are taxed as resident in both Australia and other countries will abound as the reform, unlike the current rules, is not closely aligned to DTAs and international taxing norms when a 45 day benchmark for residence is used in “complex” cases where the 45 day triggers apply.
45 days is meagre especially in an era where travel plans of expatriate Australian citizens, who return to Australia for a visit planned as short, can be disrupted by border closures. Many such expatriates are eager to avoid, and the reform should be adjusted to prevent, structural impact to their tax affairs on being made Australian tax resident due to a visit which exceeds 45 days for reasons beyond his or her control.
the onus on a taxpayer is an outlier and “reversed” when compared to the onus in other kinds of legal disputes.
Even when compared to the civil case onus, where disputes are also resolved on a balance of probabilities, the tax onus of proof is unusual. It is unlike the civil case standard which generally requires a litigant taking civil action to prove their case. That differs from disputes over Australian tax assessments where it is the taxpayer who must prove their position taken in their tax filings.
Beginnings of onus on the taxpayer
This has long been the case with Australian income tax even before the introduction of the self-assessment system in the late 1980s. Paragraph 190(b) of the Income Tax Assessment Act (ITAA) 1936, which imposed the burden of proof on taxpayers on objections and appeals over tax assessments, was in the original 1936 legislation.
Advent of self-assessment
In a sense tax legislation caught up with paragraph 190(b) with the onset of self-assessment in the late 1980s. The self-assessment system moved responsibility to assess one’s tax viz. to get tax filings right, wholly onto the taxpayer. The Australian Taxation Office (ATO) website explains how self-assessment works:
we accept the information you give us is complete and accurate. We will review the information you provide if we have reason to think otherwise
It is a corollary of reliance on the taxpayer to get their tax filings right that a taxpayer can also demonstrate the completeness and accuracy of those filings when called on to do so by an ATO review, audit or investigation.
This proposition is made clearer when considered in the wider context of the body of Australian taxpayers meeting their tax obligations. Taxpayers, who can demonstrate accuracy and justify their tax filings, expect, or might be entitled to mutually expect, that other taxpayers, under the same obligations and contributing to the same pool of revenue; are also able to so demonstrate.
How the tax burden of proof can work
Let us say:
a taxpayer T returns no income in an income year;
the ATO reveals that T has received $1m in that period;
T asserts that the $1m was a gift given to T by an overseas relative, and that is why T believes T’s income tax return was correct; and
the ATO see a possibility that the $1m could have been income of T and T’s claim of a gift may not be true.
With the onus of proof on T, T must produce the information which supports T’s claim of a gift and T’s return of no income. That seems reasonable in the context of the $1m receipt being T’s own affair with which T is familiar enough to have excluded from T’s income in T’s income tax return. Having omitted to return $1m that way it follows that it should be up to T to demonstrate that the $1m is not T’s income on review.
If the onus of proof were the other way, and on the Commissioner, then where the Commissioner has scant information to demonstrate that the $1m or some part of it was income and the Commissioner may then be unable to positively prove the $1m was income of T so:
T would avoid tax liability on the $1m even though the $1m may have been T’s income; and
it would be in T’s interests to conceal information, including information about the possible income character of the $1m from the Commissioner, which is then unavailable to the Commissioner or costly to the ATO to establish with other means or from other sources, rather than to disclose information to positively show that the $1m was not T’s income which T would be compelled to do if the onus of proof is on T.
increase in transparency of and communication by the ATO of ATO compliance activities;
reversal of the onus of proof (from the taxpayer to the Commissioner) after a certain period where the Commissioner asserts there has been fraud or evasion;
introduction of a 10 year time limit on the Commissioner for amendment of assessments where there has been fraud or evasion; and
a moratorium on collection of tax debts by the Commissioner until a taxpayer has had the opportunity to dispute the debt.
The complexity issue
The long understood weakness with the self-assessment system, particularly with income tax collection in Australia, is the complexity of tax laws: see https://go.ly/x0MIU from the Australian Parliamentary website. This was not a significantly lesser weakness under the predecessor system where ATO resources in the ATO assessment process where sparse especially to assess activity where compliance with complex laws was in issue. Since self-assessment began income tax laws have only increased in complexity and, demonstrably, in volume. Yet, over the same period there has been:
improvement in the drafting, clarity and usability of tax laws epitomised by the ITAA 1997 and its style;
a release and expansion of public and private rulings, determinations and guidance on tax laws and guidance on the completion of tax returns; and
access to them over the internet.
Role of professional tax advisers
Even before these advancements under self-assessment, 97% of corporate taxpayers and 74% of individual taxpayers used tax agents to assist them with meeting their tax obligations. Clearly tax agents and other professional tax advisers continue as a vital resource to taxpayers, especially business taxpayers, albeit at cost; to help them ensure obligations to comply with tax laws, especially complex laws, are met.
When the ATO overreaches
A difficulty I have faced in tax disputes is where a client does have information or proof which adequately does demonstrate the position taken in a tax filing but the ATO does not accept that information as sufficient proof. A related difficulty is where complex law is involved leading to protracted difference with the ATO over how tax law applies to what a taxpayer has done.
Taxpayers, especially business taxpayers reliant on professional tax advisers, are up for significant inconvenience, costs and expenses while a dispute with the Commissioner continues including where disputes arise when the taxpayer has made little or no mistake. The use of extensive debt collection powers by the Commissioner before disputes resolve is rightly a matter of controversy in tax disputes where:
it can be established that the tax dispute is genuine; and
deferral of the disputed tax debt poses no or minimal risk of permanent loss to the revenue and the community.
It could well be that there needs to be greater control and oversight of the Commissioner’s use of collection powers in these cases as there appears to be unconstrained and disproportionate use of them by the ATO when risks of loss to the revenue may have been low. The recommendation for checks and further transparency about ATO use of its compliance powers thus makes sense. Unfortunately debt collection in Australia, including collection from business, frequently involves unscrupulous and globally mobile debtors and even the Commissioner is not always well placed to judge risks of loss to the revenue or not of using the range of collection powers available to the Commissioner. It seems inevitable that some uses of collection powers by the Commissioner are not always going to appear proportionate when considered in retrospect.
The limitation periods imposed under section 170 of the ITAA 1936 are already a departure from the taxpayer expectation, related to the expectation described above, that other taxpayers will pay tax based on the way they have filed or demonstrably should have filed their taxes. Amendments are restricted after expiry of limitation periods which also means the expectation can no longer be met by assessment amendment. The limitation periods, or periods of review, are there to ensure that the Commissioner and taxpayers properly finalise tax liabilities broadly not only within the expectation but also expeditiously without the prejudice to the other party of delay. Veracity of tax filings get harder to prove after a longer period of time especially once records are archived or lost beyond the expiry of record-keeping obligations to keep those records. Belated moves to amend can thus be unfair on the other party for that reason and for others.
Fraud and evasion
The reversal of the onus of proof proposed by the Committee seems limited and justifiable as a narrow exception. It would only apply where the Commissioner alleges fraud or evasion and only after a “certain” period has elapsed. In other words the onus of proof would remain on the taxpayer to disprove fraud or evasion if the Commissioner makes the allegation (which the Committee proposes must be signed off by a senior executive service (SES) officer of the ATO) within that period. But after that period it is only then proposed that the onus is to move to the Commissioner to prove fraud or evasion.
Alleging it for the right reasons
I have been involved in tax disputes where the Commissioner has alleged fraud or evasion even though available facts are just as much explainable by taxpayer inadvertance without there having been fraud of evasion. It was apparent in those disputes that the Commissioner was alleging fraud or evasion because the period for amendment of assessments, which can be as little as two years under section 170, in the absence of fraud or evasion, had expired. The difficulty for a taxpayer, with the onus of proof on the taxpayer, is that if the Commissioner makes a fraud or evasion allegation it is then up to the taxpayer to disprove it under current law: Binetter v FC of T; FC of T v BAI  FCAFC 163 and, it follows, to disprove it at a time which may be remote from when the taxpayer may have had access to or opportunity to obtain evidence to disprove it.
It is perverse that, under current rules, the Commissioner can use unsubstantiated fraud and evasion claims against taxpayers to overcome a limitation period bar that would otherwise block the Commissioner from amending a tax assessment. That may well justify the Committee’s recommendations that the onus of proof of fraud or evasion in these delayed cases should move to the Commissioner but that the onus of proof remain on the taxpayer with respect to disproving other aspects of an assessment.
10 year limitation period for fraud and evasion cases?
But is it also necessary to impose a 10 year limitation period where there has been fraud or evasion by a taxpayer once:
SES officer sign-off is required for making a fraud or evasion allegation; and
the onus of proof of fraud or evasion is imposed on the Commissioner;
as also recommended?
Why would or should a taxpayer whose filing is tainted by demonstrable fraud or evasion, and is thus improper, be entitled to expect that the Commissioner must move to finalise taxes within a limited period of time, especially if there has been delay in the Commissioner getting information indicating shortfall of tax due to fraud or evasion by the taxpayer?
Laws reflect perspective. When the imposition of laws, especially taxes, turns on whether the taxpayer is a local (resident) or foreign (non-resident) then laws will be designed with elusion in mind so someone cannot elude being treated as:
local if the burden and focus of the law (such as a tax) falls on locals; and
foreign if the burden and focus of the law falls on foreigners.
Income tax – focus on locals
The Income Tax Assessment Act (C’th) (ITAA) 1936 overall might be considered to be in the former case in Australia. Although Australian non-resident income tax rates can be higher than resident rates, generally a wider range of activity of residents is taxable in Australia, and residents are subject to income tax on their worldwide income. Income tax collection under the ITAA 1936 and 1997 is mainly focussed on collecting income tax from residents. Certainly Australian locals can be income taxed with fewer international constraints.
Thus who is a “resident” or “resident of Australia” in the definition of these terms in sub-section 6(1) of the ITAA 1936 includes, among others: an Australian citizen whose domicile, by virtue of that citizenship, is in Australia unless the Commissioner of Taxation is satisfied the person’s permanent place of abode is outside of Australia. This definition part imposes a satisfaction hurdle without which an Australian citizen, with a domicile in Australia, will be an income tax resident with broad exposure to income tax under the ITAA 1936 and 1997.
Foreign acquisitions and takeovers – focus on foreigners
In contrast the burdens imposed by the Foreign Acquisitions and Takeovers Act (C’th) 1975 (FATA) in Australia are on foreigners and is so, along with the state and territory foreign person surcharges mentioned below, an example of the latter case in Australia. The FATA is concerned with the acquisition, monitoring and control of Australian real estate and other Australian-based investment interests by foreigners. The FATA obliges notification to the Foreign Investment Review Board (FIRB) of proposed acquisitions of specified types which can be approved or rejected by the Australian Treasurer on the recommendation of the FIRB.
A vacancy tax on foreigners commenced under the FATA as a measure to improve housing affordability for Australian locals in 2017. The vacancy fee is contained in Part 6A of the FATA under which a foreign person who owns a residential dwelling in Australia is charged an annual vacancy fee where the dwelling is not residentially occupied or rented out for more than 183 days in yearly periods which measure from the date of acquisition of ownership by the foreigner. The vacancy fee under Part 6A is imposed as a tax by section 5 of the Foreign Acquisitions and Takeovers Fees Imposition Act (C’th) 2015.
Vacancy fee rates
Vacancy fee rates are tethered to the FIRB fees (also imposed as taxes under the same section 5) applicable to a foreign person making an application to acquire the residential land. which is ad valorem based on the value of the real estate on acquisition. Here is an extract from a table with the ad valorem fees:
Acquiring an interest in residential land where the price of the acquisition is…
“foreign person” means: (a) an individual not ordinarily resident in Australia; or (b) a corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or (c) a corporation in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or (d) the trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or (e) the trustee of a trust in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or (f) a foreign government; or (g) any other person, or any other person that meets the conditions, prescribed by the regulations.
section 4 of the FATA
It follows that any person, including an Australian citizen, can be a foreign person caught by these provisions however, under a convoluted exemption arrangement, Australian citizens who are not ordinarily resident in Australia are relieved from the vacancy fee.
Relief for non-resident Australian citizens
I understand that the relief works in this way:
Section 28 of the Foreign Acquisitions and Takeovers Regulation 2015 [Select Legislative Instrument No. 217, 2015] (FATR 2015) prescribes every section of the FATA, aside from the definition of foreign person in section 4 itself and other provisions to which that definition relates to, as excluded provisions. (Bold emphasis added by me.)
Section 28 also carries a note which provides:
The effect of this Division is that acquisitions of interests of a kind mentioned in this Division are not significant actions, notifiable actions or notifiable national security actions, but are taken into account for the purposes of the definition of foreign person in section 4 of the Act.
Note to section 28 of the FTAR 2015
paragraph 35(1)(a) of FATR 2015 provides:
Acquisitions of any land by persons with a close connection to Australia
(1) The excluded provisions do not apply in relation to an acquisition of an interest in Australian land by any of the following persons:
(a) an Australian citizen not ordinarily resident in Australia;
paragraph 35(1)(a) of FATR 2015
There does not appear to be any further “close connection”, as referred to in the heading to section 35, required to trigger the exemption beyond being an Australian citizen in the case of paragraph 35(1)(a). That is: a non-resident Australian citizen has, by virtue of being a citizen, a close connection to Australia.
Application of the non-resident Australian citizen exemption to the vacancy fee?
The vacancy fee, though, is a tax imposed on a foreign person when a dwelling, already acquired by the foreign person, is not residentially occupied or rented out for more than 183 days in yearly period as stated above. Could it be that a foreign person, including a non-resident Australian citizen, will still be caught by the vacancy fee because the vacancy fee is concerned with omission to occupy or rent out property for more than 183 days over a yearly period and not with acquisition of the property so paragraph 35(1)(a) relief can’t be attracted?
The answer appears to be in section 115B of the FATA which scopes when vacancy fee liability under Part 6A arises. Section 115B provides:
Scope of this Division–persons and land (1) This Division applies in relation to a person if: (a) the person is a foreign person; and (b) the person acquires an interest in residential land on which one or more dwellings are, or are to be, situated; and (c) either: (i) the acquisition is a notifiable action; or (ii) the acquisition would be a notifiable action were it not for section 49 (actions that are not notifiable actions–exemption certificates). Note: Regulations made for the purposes of section 37 may provide for circumstances in which this Division does not apply in relation to a person or a dwelling….
sub-section 115B(1) of the FATA
It follows that the provisions of “this Division”, which is Division 2 of Part 6A of the FATA and which contains the provision imposing vacancy fee liability, are excluded provisions and so vacancy fee liability on an omission to occupy or rent residential land, where the interest in that residential land was acquired by a non-resident Australian citizen under paragraph 35(1)(a) of FATR 2015, is not attracted by a non-resident Australian citizen purchaser of the residential land. That is so even though a non-resident Australian citizen is a foreign person caught by paragraph 115B(1)(a).
This is a very complicated way to exempt non-resident Australian citizens from treatment as foreigners. Couldn’t section 4 of the FATA just carve out non-resident Australian citizens from being foreign persons to broadly the same effect?
Adding to the confusion is FIRB Guidance Note 31 Who is a foreign person (1 July 2017) which refers to paragraph 15 of the decision in Wright v. Pearce (2007) 157 CLR 485 as guidance on the position with Australian citizens. This reference is actually in error and should be Wight v. Pearce (2007) 157 FLR 485 (not a decision of the High Court of Australia). In any case I can’t see where that reference has anything to say about resident and non-resident Australian citizens having a close connection to Australia, which, unlike being ordinarily resident in Australia which is the matter under consideration at paragraph 15 of the case, is the apparent touchstone of liability when paragraph 35(1)(a) of FATR 2015 is taken into account.
Comparison of the federal vacancy fee with state foreign person surcharge land tax and surcharge purchaser duty
The foreign person surcharges in New South Wales also adopt the “foreign person” formulation in section 4 of the FATA to pinpoint foreigners liable to the surcharges but with modifications including under paragraph 104J(2)(a) of the Duties Act (NSW) 1997:
(a) an Australian citizen is taken to be ordinarily resident in Australia, whether or not the person is ordinarily resident in Australia under that definition,
paragraph 104J(2)(a) of the Duties Act (NSW) 1997
which carves out non-resident Australian citizens from “foreign persons” and thus the complexity of excluded provisions from the FATR 2015, a Commonwealth statutory instrument, do not need to be contended with to find exemption for non-resident Australian citizens from the surcharges.
In making a comparison between the the federal vacancy fee on the one hand with state foreign person surcharge land tax on the other hand it should also be observed that the state foreign person land tax surcharges are generally imposed on foreigners per se, that is: whether the residential land is vacant for a period is immaterial. So omission by a foreign person to occupy or rent out property for more than 183 days generally means liability for both the federal vacancy fee and a state land tax surcharge will be attracted.
When an individual owner of residential real estate is not an Australian citizen then whether the individual is ordinarily resident in Australia does become a touchstone for tax and surcharge liability as a “foreign person”. Sub-section 5(1) of the FATA provides:
(1) An individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if:
(a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and
(b) at that time:
(i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law; or
(ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law.
Sub-section 5(1) of the FATA
A temporary resident for tax is someone who is not an Australian citizen or permanent resident who can stay in Australia under an immigration visa which, as a matter of course, will be a visa with a limitation as to the time the holder can stay in Australia.
A temporary resident is taxable for income tax only:
on income derived in Australia; and
on foreign income but only foreign income earned from employment or services performed overseas while a temporary resident.
A temporary resident is not income taxable on capital gains made on assets which are not Taxable Australian Property e.g. real estate.
A temporary resident is a foreign person under the FATA no matter how long the individual is present in Australia until and unless the temporary resident becomes a permanent resident or an Australian citizen due to paragraph 5(1)(b) of the FATA as set out above.
Temporary residents can acquire residential real estate, including established residential premises with conditions, under the FATA and FIRB regime however the vacancy fee and the state and territory foreign person surcharges can apply to their interests in Australian residential land.
As permanent resident visa holders are not subject to any limitation as to time they can be in Australia imposed by law the requirements in paragraph 5(1)(a) of the FATA are of ongoing concern to them until and unless they become Australian citizens. That is: a permanent resident who has not actually been in Australian for 200 days in the applicable preceding twelve months is taken not to be ordinarily resident in Australia despite their visa.
If such a permanent resident owns Australian real estate but has not been in Australia for the required 200 days in an applicable twelve months then he or she is a foreign person for that year. Then the vacancy fee and the state and territory foreign person surcharges can apply to a permanent resident’s interests in Australian residential land.