Tax, Active Assets and Small Business Concessions

Posted On: Thursday, February 14, 2019

Q: Purchase of farming property in May 2013 for $1,600,000 in the family trust. The family trust is a business of primary production. This 160-acre property has since been rezoned to residential R1 and approximately 800 lots will be available for sale at 550 sq. metre minimum lot sizes.   Read More

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Australian Tax Residency

Posted On: Thursday, February 07, 2019

Question Part A   Read More

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Contractor or Employee for Sole Trader ABN?

Posted On: Thursday, January 31, 2019

Q: In Brisbane, a graduate dentist had a contract with employer on a commission (%) basis. He made the ABN as a sole trader. In this case, is he contractor or employee? Could you additionally explain it with the superannuation responsibility?   Read More

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Capital Loss Question

Posted On: Wednesday, January 30, 2019

Question

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HR Staff Question

Posted On: Thursday, January 17, 2019
Question 

We are requiring assistance to resolve an issue with an employee’s personal hygiene.

Our employee has attended work of several occasions with very distinct body odour. This person is our first point of contact for visitors to the premises and works in our admin department which comprises 4 staff in total. Our office is open plan and includes a parts, sales, service and admin sections. I had received complaints from other staff in other departments and was also concerned about visitors to our office.

Initially I held individual meetings with all (3) staff in the office and discussed with them personal hygiene and the importance of using deodorant as necessary though out the day. Meetings were held with everyone in the office as I was trying to not single the person out. Response from staff was positive and after this discussion things improved for a while, occasionally I would notice an odour, but it was much more tolerable. However, this was mostly through the winter period.

I then had another day where the smell was unbearable, I spoke to the staff member again and advised that there was a problem. She acknowledged this and advised she had forgotten to put more deodorant on at lunch time. I suggested that she might like to bring some deodorant to work and leave it in the ladies’ toilet, so it was accessible to her throughout the day. She indicated okay to this.

Another period of time has passed before again, we have had a day where the smell was unbearable. Again, I have spoken to the staff member and indicated that she must do something different as her deodorant was not working. Again, I have had staff within our immediate office and from other departments mention to me about the smell.

When I speak to the worker about the issue she does not get upset, she acknowledges there is an issue and that she needs to fix it. But it only works for a while and then we go back to having the problem. My concern is that we are going into summer and as it gets hotter this problem is likely to worsen.

I’m not sure what else I can do to address the problem, I have discussed with my manager and we are both at a loss as to how to resolve. The staff member is generally well presented in appearance and completes her work to a satisfactory standard and is polite and helpful in the office. But when the body odour is bad it is nearly unbearable. How else can we address the issue? This staff member is on a contract for 12 months as replacement for another employee on parental leave, her contract expires in April 2019.

 

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Christmas 2018

Posted On: Tuesday, December 04, 2018

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Franking Q and A

Posted On: Thursday, November 08, 2018

Scenario:

2015 - company had profit of $10,000. Company paid 30% tax

2016 - company had profit of $12,000. Company paid 28.5% tax

2017 - company had a loss of $100.00

2017 - company ceased trading, capital losses of $160,000

2018 - company had no income, trading losses of $2,000

Questions

1)Can the company pay 30% franked dividends to its shareholder in 2018? Can the shareholder (who had no income in 2018) claim the franking credits in 2018?

2)Has the Surplus Asset Test had any impact in the above distribution?

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Super contributions and Director fee Question

Posted On: Wednesday, October 31, 2018

QUESTION

My question is about Super contributions & Director fees.

Super contribution: - My accountant has suggested we salary sacrifice contributions to the super limit of 25,000. Can I make the personal contribution of $25,000 direct into SMSF account as we use a family trust (my husband is a director - he does not work in the business) to operate the business? We use another family trust (myself is a director- I work in the business) to own the property.

Will this save me having to pay more workers compo? Am I just required to complete the” notice of intent to claim or vary deductions for personal super contributions " and send it to the SMSF so it is received by SMSF before 30/6 each year?

Director Fees: - Can my husband be paid for Director fees when the resolution is passed close to the end of each financial year, and the fees are paid the next each financial year. My husband is liable for PAYG tax & super guarantee the next financial year. Could we claim the directors’ fees as the current financial year deductions?

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FBT-Question

Posted On: Thursday, October 25, 2018

QUESTION

We have a construction company and I was wondering if we were allowed to salary sacrifice mortgage repayments for some employees, and if so, would the company have to pay 40% FBT?

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Tax and Superannuation Query

Posted On: Friday, October 19, 2018

QUESTION

I would appreciate your response to a tax and superannuation question that I have.

For the purposes of the question, please assume:

  • The entity is definitely a ‘religious institution’ according to the meaning of the term 'religious institution' as it appears in the ITAA and the FBTAA.
  • The employee, a minister of religion, is definitely a ‘religious practitioner’ as defined in subsection 136(1) of the FBTAA.
    • Their duties are predominantly pastoral duties and other duties directly related to the practice, study, teaching and propagation of religious beliefs.
      • (subparagraph 57(d)(i) of the FBTAA), or other duties or activities that are directly related to the practice, study, teaching or propagation of religious beliefs (subparagraph 57(d)(ii) of the FBTAA). The latter duties and activities are referred to in this Ruling as 'directly related religious activities'.
  • Because of the application of TR 92/17, benefits provided to this employee will be exempt benefits. Therefore, they are not fringe benefits and so the FBT with or without the rebate is not relevant.
    • Benefits provided to certain employees of a 'religious institution' are exempt benefits under section 57 of the Fringe Benefits Tax Assessment Act 1986 (FBTAA). A benefit provided by a religious institution to an employee is an exempt benefit under section 57 of the FBTAA if:

a)the employee is a religious practitioner (i.e. a minister of religion, a full-time member of a religious order, or a person training to become a minister of religion or a member of a religious order); and

b)the benefit is provided to the employee, the employee's 'spouse' as defined in subsection 136(1) of the FBTAA, or the employee's 'child' as defined in subsection 136(1) of the FBTAA; and

c)the benefit is not provided principally in respect of duties of the employee, other than pastoral duties or any other duties or activities directly related to the practice, study, teaching or propagation of religious beliefs.

  • The employer has taken the initiative toward the employee in the years leading up to retirement age, in order to provide a more adequate superannuation balance at retirement age. This is because the minister only receives a ‘minimum award wage’ level of salary upon which the SGA contribution of 9.5% is paid. Therefore, their superannuation balance will be insufficient to provide an adequate income stream to cover basic living expenses. The benefits received by the minister are in the form of a stipend which merely covers living expenses and so there is no capacity for the minister to accumulate any other savings.

There is no question that in this situation, that any benefit provided to the spouse of the employee is an exempt benefit. Therefore, it is not subject to PAYG or FBT.

The point for clarification is around making a contribution to the superannuation fund of the employee’s spouse. So, the question is twofold:

  1. Is a superannuation contribution to the employees’ spouse a benefit and therefore an exempt benefit?

a)I believe the answer to this question is ‘YES’, for the following reasons:

In TR 2001/10, paragraph 38. It states:

38. It is possible for an employee to enter into an effective SSA where the employer makes a superannuation contribution in respect of someone other than the employee, e.g., spouse. However, any such superannuation contribution will be a fringe benefit.

This would suggest that in accordance with an effective SSA, an employer can make a superannuation contribution to the superannuation fund of an employee’s spouse and that the contribution would be regarded as a fringe benefit. Therefore, in the scenario presented, because any fringe benefit provided to the minister of religion is regarded as an exempt benefit, the superannuation contribution will be an exempt benefit, which means it is not subject to either PAYG or FBT.

 

a)Is the superannuation contribution a ‘non-concessional’ contribution and therefore subject to the non-concessional contribution limits of the spouse (i.e. $100,000 p.a.)?

I believe the answer to this question may be ‘NO’, for the following reasons:

Refer to attached pdf from the ATO website – qc19749.pdf – on page 8 & 9, it states:

Types of non-concessional contributions include:

contributions you make, or your employer makes on your behalf, from your after-tax income

contributions your spouse makes to your super fund (unless your spouse makes the contributions because they’re your employer)

However, as I understand it, to be non-concessional, the contribution must be an ‘after-tax’ contribution. If the additional contribution is a ‘benefit’, then I am certain that it can only be regarded as a ‘before-tax’ contribution even though it is an ‘exempt benefit’ and not subject to tax. If my understanding here is incorrect, I would be happy to hear that. Also, because the employer has taken the initiative in this situation and the employee has not influenced the payment in any way, the contribution will be non-reportable.

b)If the answer to part (a) is ‘NO’, then is the superannuation contribution a ‘concessional’ contribution and therefore subject to the concessional contribution limits of the spouse (i.e. $25,000 p.a.)?

I believe the answer to this question may be ‘YES’, for the following reasons:

A superannuation contribution made through an effective SSA would be regarded as a ‘before-tax’ contribution and so it would be regarded as a ‘concessional’ contribution, subject to the concessional contribution limits of the spouse (i.e. $25,000 p.a.) and would be taxed in the super fund at the current tax rate of 15%.

The contribution would be counted under the spouse’s concessional contribution cap and would therefore not be counted under the employee’s concessional contribution cap.

A contribution made directly to the spouse’s superannuation fund as part of an effective SSA would be different from splitting superannuation contributions, because it is effectively a before-tax contribution by the employee to the spouse’s superannuation fund rather than a 'contributions-splitting super benefit' in relation to a contribution already made to the employee’s super fund. Therefore, the rules with regard to super splitting would not apply.

I would appreciate your confirmation of my understanding or any correction or your advice regarding any other relevant matters.

ANSWER

It is necessary to determine whether this charity would qualify as a religious institution and you would need to be certain that the FBT rebate applies before embarking on this course of action.

It is suggested that if an effective salary sacrifice occurs then PAYG does not apply but there may be a taxable value for FBT.

There may be other options…

If the pastor salary sacrifices the amount into his own fund (assumes he is below yearly contribution limit – 25k), then he may consider superannuation splitting with his wife.

If the religious practitioner’s wife plays any active role in the charity... then it may be possible for her to be engaged as an employee and then do an effective salary sacrifice.

Note it is only fund members who can make non-concessional contributions.

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