Tax Month – September 2021

T a x  T e c h n i c a l  –  M o n t h l y  N e w s

– September 2021 Edition –

‘Tax Developments’ for tax practitioners by a tax practitioner.

 

Compiled by F John Morgan
A member of the Victorian Bar (www.FJMtax.com)

Table of Contents

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COVID-19 related matters

• QLD: Tourism industry boost announced – 25.9.2021
• COVID-19 Disaster Payment phase out announced – based on National Cabinet vaccination milestones by State and Territory (29.9.21)
• Vic: Additional funding for COVID-19 re-opening – Business Costs Assistance; Licensed Hospitality; Small Business Hardship
• ACT: Additional COVID-19 business grants announced – Business Grants; Tourism, Accommodation Provider, Arts, Events, Hospitality & Fitness Grants program

Legislation

Acts & Bills

• Senate Committee report on film offset changes in No 5 Bill
• Treasury Laws No. 5 Bill inflames the the post-production, digital and visual effects industry
• Treasury tax and super miscellaneous amendments (No 2): draft legislation
• OBUs and DGRs: proposed Senate amendment to Measures (No 2) Bill 2021
• Bill (No 6) 2021 passes Parliament with no amendments – actuarial certificates; family law super info; electricity refunds
• Innovation and Science Australia to be renamed: Bill passes Parliament
• Update to countries in information exchange arrangements: Regs registered

Announcements & Drafts

• Income tax, bracket creep – trade off between returning it and paying down debt: Parliamentary report
• Final Budget Outcome 2020-21 shows $26.8bn improvement – Lower deficit and net debt; Higher company, individuals, super fund and GST receipts
• Review of insolvency safe harbour for company directors: consultation paper for final report

Cases

High Court

• High Court holds that using social media made a person potentially liable for 3rd party allegedly defamatory ‘comments’ on a news article – by ‘facilitating’ its publication
• Fairfax, Nationwide & Australian News v Dylan Voller – news outlets social media pages left them potentially liable for ‘publishing’ 3rd party allegedly defamatory comments

Full Federal Court

• CUB Australia Holding Pty Ltd v CofT – Notice to provide ‘subject’/’title’ & other information valid – to assess taxpayer’s LPP claim

Federal Court

• Legal Professional Privilege ‘carve-out’ from obligation to produce information – ATO, PwC & Amicus Curiae ‘duke it out’ in the Federal Court (with client: JBS looking on) – be part of the action: ‘fun for everyone’
• Legal professional privilege – a background briefing, to the ATO’s Federal Court challenge to PwC’s claims (relating to its work for client: JBS)

Administrative Appeals Tribunal (AAT)

• Mfula v CofT – Locum surgeon denied deductions for travel expenses
• Ballintine v CofT – Tax debt not waived as taxpayer “substantially responsible”
• MJ and IT Holdings Pty Ltd v CofT – Scheme to increase amount of cash flow boost stymies taxpayer
• McAuliffe v CofT – Application to review successful objection dismissed

Other Courts & Tribunals

• Trio sentenced to jail for illegal phoenix operation
• Another person charged in fraud and money laundering investigation

Appeals

• Coal of Qld Pty Ltd – High Court dismissed taxpayers leave for appeal – not R&D
• Taxpayers: Joubert & Doyle – discontinue appeals to Federal Court – Singapore worker resident; profit on development land was income

Rulings

Decision Impact statements

• ATO draft ‘Decision Impact Statement (DIS) on Glencore Investments ‘transfer pricing’ case – after High Court refused the Commissioner leave to appeal

Rulings

• —

Determinations

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Law Companion Rulings

• —

Class Rulings & Product Rulings

• CR 2021/58 – Payments to tennis officials in non-professional events not assessable

ATO Interpretative Decisions

• —

Practice Statements

• PS LA 2021/D2 – electronic sales suppression tools – Administrative penalties for offences

Practical Compliance Guides

• —

Tax Alerts

• TA 2021/2 – Disguising undeclared foreign income as gifts or loans from related overseas entities

Other ATO news or statements

• Claiming Legal Professional Privilege: ATO releases its draft protocol for consultation (no joint protocol with LCA)
• First-time share and ETF investors: ATO worksheet

GST 

Legislation & Announcements (GST)

• —

Cases (GST)

• STNK v CofT – another GST gold case – not relevantly ‘refined’ but some GST-free as an export and no Div 165 anti-avoidance

Rulings, Etc. (GST)

• —

Superannuation

Legislation etc. (Super)

• Retirement income strategy covenant: draft legislation released

Cases (Super)

• Court finds super trustee mislead members about MySuper – Colonial First State ‘FirstChoice Fund’

Rulings etc. (Super)

• ATO extends COVID-19 relief for SMSFs for one more year – to 2021-22
• Super investment governance: APRA revisions proposed for SPS 530
• Super “work test” – APRA FAQs –  post ‘JobKeeper’ Covid relief recipientsare NOT automatically ‘gainfully employed’
• SMSF sector performance during COVID-19 held up well: Class benchmark report
• MySuper default insurance and occupational exclusions: Treasury consultation paper
• Super COVID-19 re-contributions: ATO approved form finalised
• SMSF auditor referral fees: concerns about proposed changes to APES 110
• APRA super data reporting: staged implementation update

State Taxes

Legislation & Announcements (State)

• —

Cases (State)

• NSW land tax – exempt ‘primary production’ per Court of Appeal – NSW Commissioner v McIntosh Bros Pty Ltd (in liq) – despite 4 uses by independent persons with meagre profits

Rulings & Other (State)

• NSW payroll tax on employer super contributions: Practice note CPN 021

Other Developments

Australian Charities & Not-for-Profits Commission (ACNC)

• Charity sector reform – change size thresholds, related-party disclosures & remuneration disclosure – draft regulations released

Base Erosion & Profit Shifting & OECD

Board of Taxation

• —

Inspector General and other external supervisors

• IGTO’s report on ATO’s JobKeeper enrolment deferral decisions – should have applied the ‘fair and reasonable threshold’ (not ‘exceptional circumstances’)
• IGTO’s survey results on ATO communication of taxpayers’ rights – 60% unaware of ‘ATO Complaints’
• IGTO’s IGoT News! edition 17 released – reporting tax debts to credit bureaus, undisputed tax debts (and more … )

Miscellaneous

• —

Tax Articles

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Tax Practitioners Board

• TPB – Federal Court injunction to stop unregistered tax agent practising
• New MoU between TPB and the Professional Standards Councils
• Maximum 5 year ban for tax agent: TPB