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Latest News

606, 2018

ATO Attack on Rental Property Expense Claims

By |June 6th, 2018|

We have recently helped a number of taxpayers who have had their rental property deduction claims queried, and often disallowed, by the ATO.

The property is usually in a ‘holiday town’ and is advertised as being available for rent all year but is also occasionally used by the taxpayer and their family to stay in. The taxpayer’s use is usually only a couple of weeks each year.

The ATO argues that the taxpayer is only allowed to claim deductions for interest etc. up to an amount equal to the actual income derived. So if the property is actually only rented out for 6 weeks and derives rent of $3,000 then the ATO says the taxpayer is only allowed to claim deductions of $3,000. This is despite the fact that the property was available for rent for 50 weeks of the year (the taxpayer staying in it the other two weeks).

The ATO argues […]

2405, 2018

Changes to Small Business CGT Concessions

By |May 24th, 2018|

A bill containing changes to the Small Business CGT Concessions (‘SBC’) has now been introduced into Parliament. It is Treasury Laws Amendment (Tax Integrity and Other Measures) Bill 2018 (Cth) (‘the Bill’). According to the Bill, when passed, the changes will apply in relation to CGT events happening on or after 1 July 2017. That is, the changes are retrospective.

The first thing to note is that the changes only apply where the asset being sold, or in respect of which the CGT event happens, is a share in a company or an interest in a trust (e.g. a unit in a unit trust). If the CGT event happens in relation to some other type of asset the changes do not apply.

The changes were introduced to stop taxpayers accessing the SBC in certain unintended circumstances. Below you will find examples demonstrating the operation of these changes.

 

Example 1:

Bob owns 20% of the […]

1903, 2018

The ATO’s concern over SMSFs using reserves

By |March 19th, 2018|

The recent release of regulatory bulletin SMSFRB 2018/1 highlights what will spark the ATO’s interest where an SMSF is using reserves. The bulletin was issued in light of the 2017 super reform and the ATO’s concern that some SMSFs are implementing reserving strategies designed to circumvent restrictions imposed under the new law.

Overall, the Commissioner considers that the small membership nature of SMSFs means that the need to maintain reserves in SMSFs is distinct from the need to maintain reserves in APRA regulated superannuation funds. Consequently, the Commissioner expects the use of reserves by SMSFs to be extremely limited and, where an SMSF does hold reserves outside of such limited circumstances, the Commissioner will consider whether the trustee is acting in accordance with their obligations under the […]

1903, 2018

When is a Memorandum of Understanding or a Heads of Agreement Legally Binding?

By |March 19th, 2018|

We often see matters where clients have negotiated the terms of a business deal with another person and the parties then sign a short form document (usually called a Heads of Agreement or Memorandum of Understanding) that embodies the terms of the deal with the intention of executing a more formal agreement later.

What happens if the parties cannot agree on the terms of the formal agreement?  Can a party that wants to proceed with the deal force the other party to go ahead? Or can the party that doesn’t want to proceed walk away?

The answer to this question is the lawyer’s standard answer: “It depends”.

The document needs to be clear about the parties’ intentions as that will determine the issue.

 

Masters v Cameron

The leading decision in this area is the High Court case of Masters v Cameron (1954) 91 CLR 353.

That case established that there are 3 possible scenarios:

  • The parties have […]
1903, 2018

More Certainty for Victorians over their Medical Treatment Decisions

By |March 19th, 2018|

More Certainty for Victorians over their Medical Treatment Decisions

The law surrounding advance care directives and medical treatment decision-making has drastically changed with the introduction of the Medical Treatment Planning and Decisions Act 2016 (Vic) (“the Act”). The Act came into effect on 12 March 2018.

The Act repeals the Medical Treatment Act 1988 (Vic) and implements a single framework regarding medical treatment decision-making for people without decision-making capacity. This overhaul aims to ensure that people receive medical treatment that is consistent with their preferences and values. It is focused on personal autonomy.

The Act is in response to past legislative complexity and inconsistency. Previously, Victoria had four different Acts governing this area, each with their own definitions, tests for capacity and obligations. Now, medical treatment decision-making is solely governed by the Act.

The Act does not cover unlawful medical treatment, such as physician assisted dying.

 

What’s different?

Advance care directive (“ACD”)

The Act will […]

1312, 2017

Unpaid rent and outgoings: issues for Landlords to consider in commercial leasing

By |December 13th, 2017|

Often the owner of a commercial property (“landlord”) is left chasing unpaid rent, outgoings and other expenses from a tenant.

Before taking steps to end the commercial lease and re-enter possession of the property, a landlord should be aware of its rights under the lease agreement.

 

Some of the issues the landlord must consider are:

  • What amount is outstanding and when was it due?
  • Has there been any demand for payment?
  • Is there any dispute in relation to the outstanding debt?
  • What does the lease say about failing to pay rent, outgoings and other expenses?
  • Is the tenant in breach of the lease?
  • Is notice of the breach required, and, if so, how much notice is required?
  • What is the process to evict the tenant?
  • What are the consequences of re-entry by the landlord?
  • Is timing an issue?
  • What property would remain in the premises if the Landlord re-entered and took possession of the premises by changing the locks?
  • What happens next?

 

Generally, a […]

1312, 2017

Landholder Duty and Death

By |December 13th, 2017|

Where a private company or unit trust owns real estate with a value of $1 million or more then duty may be payable when there is a change in shareholding or unit holding. If duty applies it will be chargeable at the rates applicable to land transfers.

Duty will be chargeable where the acquisition of shares or units amounts to a ‘relevant acquisition’. In general terms, where the acquirer owns 50% or more of the ordinary shares in the company after the acquisition (20% for unit trusts) then the acquisition will likely be subject to duty.

The provisions can also apply where a shareholder or unit holder dies and as a result their shares or units pass to a beneficiary. Although an exemption from duty can apply a Landholder Acquisition Statement must still be completed and lodged with the State Revenue Office within 30 days of the relevant acquisition occurring. An application […]

1312, 2017

ATO ruling says penalty tax may be payable on holiday homes owned by trusts

By |December 13th, 2017|

According to the recently released TD 2017/20 a family trust that owns a holiday home will be liable to pay family trust distribution tax (FTDT) at 47% where friends of the family stay in the holiday home.

 

How can this arise you may ask?

A trust may make a family trust election (FTE) for a number of different reasons including:

  • to assist it in claiming prior year losses and debt deductions;
  • to allow beneficiaries to claim franking credits on franked dividends distributed to them; and
  • to help pass the no change in underlying economic ownership requirement in the new small business restructure roll-over relief.

If a trust has made a FTE then any ‘distribution’ of income or capital to a person who is not a member of the primary individual’s family group will be subject to FTDT.

 

What constitutes a distribution?

The definition of distribution to a person is expanded in section 272-60 and includes paying or crediting […]