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SMSF’s are regulated by the ATO and have specific eligibility criteria that members and trustees must follow. While anyone 18 years old or over can be a trustee or director of an SMSF, they mustn’t be under a legal disability, such as mental incapacity, or a disqualified person.
The ATO can render an SMSF trustee as a disqualified person if they see the need, particularly in relation to illegal early access breaches. There are other ways a person may become disqualified and some may not even realise they have been. Continuing to act as an SMSF trustee or director of the corporate trustee while disqualified is an offence, further penalties may apply.
A person is disqualified if they:
- Have been convicted of an offence involving dishonesty.
- Are or have been subject to a civil penalty order under the super laws.
- Are insolvent under administration (including being an undischarged bankrupt).
- Have been disqualified by a court or regulator (for example, by the ATO or APRA).
The ATO has a Disqualified trustees register to see if an individual has previously been disqualified. The register provides information and easy search options to help determine whether a potential trustee has been disqualified. It is updated quarterly and includes all individuals who have been disqualified since 2012 (when the information was first published electronically).
Tax incentives may be available to investors that are considering putting their money into qualifying start-up businesses. Eligible businesses are defined by the ATO as early-stage innovation companies (ESICs).
The two key tax incentives for eligible early-stage investors, also known as ‘angel investors’, who purchase new shares in an ESIC are:
- Non-refundable carry forward tax offset that is equal to 20% of the amount paid for their qualifying investments. This offset is capped at a maximum amount of $200,000 for the investor and their affiliates combined in each income year.
- Modified capital gains tax (CGT) treatment, where capital gains on qualifying shares that have been continuously held for at least one year may be disregarded. Capital losses on shares that have been held for less than ten years must be disregarded.
Note that the maximum tax offset of $200,000 does not limit the shares that qualify for the modified CGT treatment.
The early-stage investor tax incentives are available to both Australian resident and non-resident investors. To qualify for the tax incentives, investors must have purchased the shares in a company that meets the requirements of an ESIC immediately after the shares are issued. They must be issued on or after 1 July 2016.
The ATO has released an Impersonation Scam Report for the month of February 2019. Highlighted are the various ways in which scammers have attempted to contact people, posing as the ATO.
The most common method of contact was by phone calls or messages, accounting for 97% of reported scams over the month. Reports of 9,342 phone scams were officially recorded, decreasing significantly from 13,800 reports in January 2019. Emails accounted for 2% of scamming methods. The remaining 1% reported was scam by text message.
According to the ATO, the amount collected by scammers was approximately $256,635, over $240,000 less than January 2019. Payments to these scams by bank transfers significantly increased in February, accounting for 47% overall.
Although trends are down in the last month, the ATO is working to create better public awareness of these scams. The ATO has launched a new scam warning video across their various social media platforms, including Facebook, Twitter and LinkedIn.
With upcoming annual lodgement dates for Transfer Balance Account Reporting (TBAR), the ATO is alerting funds of common lodgement mistakes that could lead to delays and additional processing time.
The Transfer Balance Cap (TBC) is a $1.6 million cap on the total amount of superannuation benefits that a member can transfer into a tax-free retirement phase income stream. TBAR is used by SMSF trustees to report to the ATO any events that affect a member’s transfer balance. The information is used to record and track the member’s TBC and apply provisions if the member were to breach the cap.
Reports can be lodged both online or by paper forms. The electronic method is recommended by the ATO as human errors are common when using the paper form to report. These issues are often a failure to provide the fund’s ABN and failing to report the event type. When these errors occur, the form will be suspended for manual review and the ATO may need to contact funds in some cases to resolve any issues.
A TBAR must be lodged for the 2018-19 financial year if any member had a transfer balance account event occur in the last year, and if all members have a total super balance of $1 million. The due date for annual TBAR reporting is the same date as the SMSF annual return on 15 May 2019, although not all funds have the same lodgement due date. Trustees should familiarise themselves with their SMSF’s due dates and ensure they are reporting the correct information to avoid processing delays.
In an ongoing effort to address the misuse and abuse of the tax and regulatory systems, the ATO has implemented a new tool to monitor what constitutes reasonable personal living expenses.
Information is requested by the tax office to identify unreported cash income when looking at household expenditure. An individual will be required to provide this information to work out if they need to make adjustments to their business and record-keeping practices as well as help the ATO identify if they should be selected for an audit.
In the event of an audit or when making an assessment in the course of examining an individual’s tax affairs, the ATO will employ a set of guidelines presented in the form of questionnaire worksheets. These worksheets will require taxpayers to provide certain details about the living expenses of their household.
Discrepancies in tax returns that have been discovered by individuals completing a personal living expenses worksheet can be adjusted through voluntary disclosure. Taxpayers that voluntarily inform the ATO of mistakes before an audit may be eligible for reduced penalties.
Several revisions from the Treasury Laws Amendment (2018 Measures No.4) Bill 2018 took effect from 1 April 2019. These measures are designed to help reduce the super guarantee (SG) gap, protect employees’ super entitlements and strengthen the ATO’s ability to recover unpaid super.
Changes to disclosure laws will now allow the ATO to disclose information to employees about an employers’ failure to meet SG obligations. This will also allow for the ATO to reveal their processes involved in retrieving these amounts.
Additionally, a free voluntary online education course is now available to help employers understand and meet SG obligations. Education directions permit the ATO to instruct employers who don’t meet their SG obligations to complete the online education course, which includes an assessment element.
Individuals are encouraged to notify the ATO of non-complying employers. If your employer is approachable, you could make them aware of the online course and its benefits prior to the ATO contacting them and directing them to complete it.
The ATO has increased fuel tax credit rates from 4 February 2019. As fuel tax credit rates are updated regularly, it is important to check the rates each time you lodge a business activity statement (BAS).
Fuel tax credits provide businesses with a credit for the price of fuel used in machinery, plants, equipment, heavy vehicles, or light vehicles travelling on private roads. The amount of credit will depend on when the fuel is acquired, what fuel is used and the activity it is used for.
The changes in fuel tax rates are indexed twice a year, in February and August in line with the consumer price index (CPI). The current rates apply from 1 July 2018 to 30 June 2019.
If you claim less than $10,000 in fuel tax credits each year, you can use a simplified method to make claims to the ATO. For further information on claiming fuel tax credits and specific rates, you should consult your registered tax agent.
The ATO has called on self-managed funds to check whether they are meeting new pay-as-you-go (PAYG) withholding obligations for capped defined benefit income streams paid to their members.
SMSFs have PAYG obligations to withhold tax from income streams that have been paid to their members in circumstances where:
- The member is 60 years or older.
- The member is under 60 years and has a death benefit capped defined income stream (where the deceased was 60 years or over when they died).
If you have no tax that you need to withhold from a member’s super, then you are required to provide the individual with a pension payment summary and lodge a PAYG withholding summary with the ATO. This should be done by 14 August, following the end of the financial year that the payment was made.
The 2019-20 Federal Budget has placed a strong focus on the growth of the economy whilst also having the intention to look after older Australians.
Older Australians will benefit from the work test exemption age being extended from age 64 to 66. The work test requires an individual to work at least 40 hours in any 30 day period in the financial year in order to make voluntary personal contributions.
This change in age will now allow individuals aged 65 and 66 who previously didn’t meet the work test to contribute three years of after-tax contributions in a single year, meaning up to $300,000 can be injected into an account with less than $1.6 million in super (tax-free pension threshold). This adjustment aligns with the increase for the Age Pension from 65 to 67.
Spousal contributions can now be made until age 74, up from age 65, without having to meet the work test. Under spousal contribution regulations, an individual can claim an 18% tax offset of contributions up to $3,000 made on behalf of a non-working partner. A further $3,000 can be contributed but with no tax offset.
Lodging a business activity statement (BAS) is something all business owners will be familiar with, however, mistakes can still be made. You must ensure that you have reported carefully and correctly to avoid incurring a penalty. In the event an error has been made in the reporting of your activity statements, here is what you will need to know to rectify the misreporting.
If you have made a mistake or left something out on a previous activity statement, in most cases you are able to correct the errors on your next statement or lodge a revised statement.
An error or mistake relates to an amount that was incorrect at the time of lodgement and can be fixed by revising the original BAS or making the relevant changes on your next BAS. Examples of a mistake include:
- Clerical or transposition errors.
- Reporting a taxable sale/purchase as GST free, or reporting a GST free sale/purchase as taxable.
An adjustment relates to a report that was correct at the time of lodgement but a situation has since occurred that changes the amount of reported GST. Examples of when to make an adjustment are:
- If the price of a purchase changes.
- If the goods are returned and the sale has been cancelled.
To avoid penalties, all mistakes must be corrected within four years. You can do this through myGov, on the Business Portal of the ATO, from your business software if it is enabled for Standard Business Reporting (SBR), or by contacting the ATO.