Capital Gains on Client Base Sale

Posted On: Thursday, April 04, 2019

I have a Corporate Client who is selling off part of a Client Base and I’m unsure of the Tax Consequences, although it does appear to be a CGT Event.

The Sale Price is expected to be $175,000.

A Cost base is yet to be established, but it will probably be between $40,000 and $80,000.

It’s all Goodwill.

The ATO have suggested that TR 1999/16 and TR 2005/16 may help me.

The Corporate Client has been operating for some 13 years.

Answer — Let’s work on the basis that the capital gain is a notional $115k.

Example 2 in TR 1999/16 indicates we are dealing with goodwill, but this would have to be determined and confirmed from the terms and conditions of the sale.

We do not see how TR 2005/16 is relevant in any way as this deals with PAYG issues.

Given the business has operated for 13 years, we are clearly dealing with a post CGT (Sept ’85) asset and the 15-year retirement exemption does not apply.

Firstly, are there any capital losses in the company? If so, then these should be offset first.

So, to be clear we are now dealing with the CGT small business concessions.

Given all the SBE CGT conditions have been met, you could apply the active asset (AA) concession (50% reduction) but the application of this illustrates the shortcomings of a company in these instances.

A trust would be effectively able to apply the active asset concession (50%) and then the individual concession (50% of the remaining balance) if the distribution was made to an individual.

This effectively deals with 75% of the capital gain.

In a company you can only apply the AA concession at company level – you then pay out this component of profit as an unfranked dividend then pay individual tax or deal with a Div7A issue.

For this reason, many people in this situation decide to apply the retirement exemption which is up to a lifetime limit of $500k per person.

If the significant individual is less than 55 years of age, then this must be paid into a complying super fund with no contributions tax.

If the individual is over 55 years of age, then there is no requirement that the capital gain be paid into a complying super fund – rather it can be accessed by the individual.

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Property Purchase and Main Residence

Posted On: Thursday, March 28, 2019

Hello. I refer to October 2014, Tax Smart magazine, issue number 0071, example 1, on page 29.   Read More

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Employment Type of Appointment-Based Worker

Posted On: Thursday, March 21, 2019

The new dentist has no set hours during the 5 days at an office (pay rate 40:60 inc. super & etc.), so he works only if there is a patient. The employer is managing the dental assistants and receptionists. He also has P.I and works no other place.  Read More

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Capital Loss Question

Posted On: Wednesday, January 30, 2019


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Franking Q and A

Posted On: Thursday, November 08, 2018


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


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


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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Posted On: Thursday, October 25, 2018


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


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.


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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Textbook Tax Deduction Query

Posted On: Thursday, October 11, 2018


I am enrolled as a full-time master’s student at Melbourne Uni. I receive a tax-free graduate research stipend. The role is part of a training program, so I can qualify as a veterinary pathology specialist, and I teach, perform research and also perform diagnostic duties as part of the role. I recently submitted my tax return and claimed $2000 in veterinary textbooks that I purchased that are directly related to performing my role at Uni and will also aid in completion of my specialist examinations. Are these not tax deductible? My tax return has been “delayed”.

I started this role in January and prior to this was working as a veterinarian (and paying tax).

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Expense Deduction Question

Posted On: Friday, October 05, 2018


We require an opinion on the following: -

We have a client that owns two car yards with multiple brand dealerships and they run a sprint car operation that competes around Australia. We are wanting to know more about the deductibility of the sprint car expenses.

The sprint car set up is a serious operation, all drivers/mechanics etc. are employees and are not family members. The main business owner and his son are involved as managers of the sprint car operation, but not day to day managers as their day job is actually running the car yards. The primary purpose of the sprint car operation is to promote the car yard businesses. Ball park numbers $400k expenses and $200k prize money.

The “Sprint Car’ business is operating under the same entity as the car business. The ‘loss’ has been written off as advertising in previous years.

Do you know of any ATO guidance documents on the deductibility of these types of expenses? Do you have any advice on general deductibility of the expenses?

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