John Morgan is a tax specialist lawyer of more than three decades experience now practicing at the Victorian Bar - w: www.FJMtax.com e: f.john.morgan@vicbar.com.au

The Trustee For Virdis Family Trust t/a Rickard Heating Pty Ltd v CofT – Super guarantee: plumber an “employee” under extended meaning

The AAT has held that a plumber was an “employee” pursuant to the extended meaning of that term in s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (SGAA) for a person working under a contract – wholly or principally for labour. The facts were these. The taxpayer conducted a business selling and installing cooling and…

Decleah Investments Pty Ltd & Anor v CofT – GST: taxpayer’s margin scheme valuation confirmed – despite discounting from actual sales and expenses

The AAT has confirmed that the value assigned by a taxpayer for the purposes of the pre-1 July 2000 margin scheme provisions was $22m as the taxpayer contended (not the $8.1m contended by the ATO) because it was the product of an “approved valuation” (which discounted from actual sales and costs figures, rather than projected…

Buzadzic v CofT – AAT upholds amendments to husbands assessments (unexplained deposits, Div 7A dividends etc.) but allowed the appeal of the wife (deposits belonged to husband)

In late December 2021, the AAT upheld amendments made out of time on the basis of ‘fraud or evasion’ against a husband, but allowed the appeal of the wife, on the evidence that she was a ‘stay at home mother’ and the unexplained deposits in her accounts beloved to her husband. It upheld penalties of…

Employee share schemes: changes to regulatory requirements in Corporations Act – draft legislation

Treasury has released exposure draft legislation and a consultation paper proposing changes to the regulatory framework for certain employee share schemes. The changes are intended to make it easier for businesses to create employee share schemes and seek to implement the Government’s 2021-22 Budget proposals. It should be noted that there are no changes to any…

JobKeeper – new amending regulations to allow payments after 31.3.22 etc.

Treasury has released the Treasury Laws Amendment (Miscellaneous Amendments) Rules 2021 (the “Amending Rules”) which make technical amendments to the JobKeeper rules [Federal Register of Legislation – F2020L00419] including a power to pay amounts after 31 March this year. As originally drafted, the Commissioner was unable to make any JobKeeper payments after 31 March 2022 regardless of circumstance. This applied…

OECD releases ‘Pillar Two’ model rules for 2022 local introduction – minimum 15% international tax (2nd of ‘two-pillar’ response to digitalisation of economy)

The OECD has released detailed rules to assist countries to implement the second of a ‘two pillar’ reform of the international tax rules (addressing ‘digitalisation’ of the economy) – that is: ‘Pillar Two’. This 15% minimum global tax regime was agreed, in October 2021, by 137 countries and jurisdictions under the OECD/G20 Inclusive Framework on BEPS.…

DGSC v CofT – individual was not eligible for JobKeeper benefit as self-employed because she first gave notice to her part-time employer

On 24 December 2021, an individual who was both a casual employee and a sole trader could not qualify for JobKeeper as a business participant because she had previously given a nomination notice to her employer and couldn’t withdraw it, to claim as self-employed). The applicant was both a long-term casual employee of her employer and…

Addy case – ATO issues decision impact statement on its loss in the High Court – ‘backpacker tax’ struck down as ‘discriminatory’ under DTA (brace yourself Mr Commissioner)

The ATO has issued a decision impact statement on the High Court’s decision in Addy v FCT [2021] HCA 34. This case decided that a British citizen (the taxpayer) who held a working holiday visa but who was held to be a resident of Australia was entitled to be taxed at the more favourable rates applicable…

FFYS v CofT – Individual suffering decline in AirBnB bookings not entitled to ‘JobKeeper’ – not a ‘business- and ‘input taxed’ receipt outside ‘decline in turnover’ test

In late December 2021, the AAT found that an individual, who earned income from accepting paying guests in her home, using the AirBnB platform to source bookings, was not carrying on a business and was, therefore, not eligible for JobKeeper payments. Also her reduced receipts were input taxed and didn’t qualify as ‘turnover’ under the ‘decline…