SME Business Accountants at Sydney Sails Restaurant for the 2011 Melbourne Cup.

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The Australian Taxation Office (“ATO”) is increasing their audit activities in relation to Living Away From Home allowance (“LAFHA”) benefits provided to employees. This article sets out the requirements of a LAFHA and the documentation that should be maintained to support LAFHA benefits.

What is a LAFHA?

A LAFHA benefit arises where an employer pays an allowance to an employee (including working directors) as compensation for additional non-deductible expenses and other disadvantages caused by the fact that the employee (with or without family members) is required to live away from his or her usual place of residence in order to perform the duties of employment.

When is an employee considered to be living away from home?

Generally, an employee is considered to be living away from home where the employee moves away from their usual place of residence to a temporary residence so that they can carry out their work duties. This is usually for greater than 21 days, but can be up to four years. An employee’s transfer should be for a fixed period and the employee should expect to return to their usual place of residence upon completion of their temporary work assignment.

Taxation of LAFHA

Concessional taxation treatment of a LAFHA for accommodation and/or food expenses incurred by an employee living away from home is available when an employer pays an allowance to a relocating employee.

Under the Fringe Benefit Tax (“FBT”) rules, a LAFHA is exempt from FBT as long as the accommodation and food components of the allowance do not exceed certain limits. The LAFHA does not attract PAYG Withholding and is not taxed in the hands of the employee.

Food

The ATO releases each year a determination of the maximum amount that will normally be accepted as the reasonable food costs. Set out below is the table extracted from the latest determination (TD 2011/4), covering the period 1 April 2011 to 31 March 2012

The maximum tax exempt LAFHA food component or the “additional food” component is then calculated by deducting from these amounts the relevant statutory food amounts, referred to in MT 2030, of $42 per adult and $21 per child under 12.

Accommodation

For accommodation, the entire amount will be exempt as long as the rental payments are considered reasonable in the circumstances, i.e. they are not excessive. On many occasions, the market rate of rent is acceptable subject to consideration of the factors addressed below by the ATO:

• Whether the employee will be accompanied by family members;
• The position held by the employee in the workplace;
• The location where the employee will be living;
• Whether or not the accommodation will be furnished; and
• The employee’s current living standards

ATO focus

The ATO is focusing their compliance activities on LAFHA benefits as it believes some employers may be claiming excessive amounts for exempt accommodation and food components. The ATO is contacting employers from April 2011 onwards requesting information for each employee receiving such an allowance.

Supporting documentation

Records must be kept for five years to support any LAFHA benefits provided. The following records should be maintained:

• LAFHA declaration: This signed document must detail the employee’s usual place of residence and actual place of residence during the period of the allowance;
• Employment contract: This document must include details of the period the employee will be required to live away from their usual place of residence; and
• Documentation to verify the date the LAFHA was provided, the amount of LAFHA paid, the amount of exempt accommodation and food allowances paid and the basis for calculating any exempt accommodation and food components.

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In the process of buying a business, the purchaser should conduct a due diligence review to establish that they are buying what they believe they are buying. The review identifies areas of risk and contingent liabilities that the business may have and to factor these risks in the purchase price.

When buying a business or the company that conducts a business, there are many tax issues that the purchaser needs to consider prior to the contract being signed.

In most cases a purchaser acquires the assets of the business unless there are significant commercial reasons for buying the company (e.g. contractual obligations that cannot be assigned). This avoids the risk of assuming the company’s liabilities some of which may not be known or readily identifiable.

The taxation implications of buying either the assets of the business or the shares in the company are very complex and professional advice should be obtained.

BUYING ASSETS OF THE BUSINESS

The type of assets usually purchased include trading stock, goodwill, plant & equipment, business premises, trademarks and other intangible assets. Depending on the circumstances, other assets may be acquired and liabilities may also be assumed.

The price paid for the business should be allocated between all the business assets being acquired and the values separately allocated in the contract.

The ATO will generally accept the allocation of sale proceeds between the various classes of assets as agreed in the contract provided the vendor and the purchaser are dealing at arms length.

1.  Trading stock

The valuation of trading stock can have a material effect on the sale negotiations. The purchaser prefers a higher value allocated to stock as this results in a higher cost of goods sold and therefore a lower profit, whereas the vendor prefers a lower value to reduce their assessable income.

For tax purposes the vendor is treated as selling the stock for its market value and the purchaser is treated as having bought the stock for this value.

2. Trade debtors

The purchaser doesn’t normally acquire the trade debtors of the business as a tax deduction is not allowed for any debts that subsequently go bad. Instead the purchaser should collect the debts as agent for the vendor.

3. Accrued employee leave entitlements

Where the purchaser will retain some of the employees, its important that accrued employee entitlements (e.g. annual leave and long service leave) are determined and factored in the purchase price.

There are three alternative ways of dealing with accrued employee entitlements upon the purchase of a business:

• If the relevant employee’s Award does not provide for the employee’s leave entitlements to be transferred to the purchaser, the vendor can pay out these liabilities and obtain a tax deduction.
• The vendor makes a payment to the purchaser who in turn takes over the employee’s accrued leave entitlements. The purchaser either assumes these liabilities because it is an Award requirement, or because the purchaser has agreed to do so. The vendor may be entitled to a deduction for the accrued leave transfer payment and the purchaser is assessable on the amount received.
• The purchase price is reduced in recognition of the purchaser accepting responsibility for the accrued leave entitlements. The reduction in the sale price is generally not deductible to the vendor nor is it assessable to the purchaser.

4. Plant & equipment

A value should be allocated to all the items of plant & equipment. The purchaser would prefer to allocate a greater amount to plant & equipment as either depreciation or an outright deduction can be claimed for each individual item.

5. Business premises

Where the purchaser is also acquiring the business premises, a tax deduction for the capital costs of building works carried out usually passes to the purchaser. The purchaser should ensure that that a notice is provided by the vendor outlining the construction cost details for the purposes of claiming the building write-off.

6. Work in progress

An amount paid by the purchaser to the vendor for work (WIP) in progress is generally assessable to the vendor and tax deductible to the purchaser. When the WIP has been completed it will be assessable to the purchaser either:

• When the amount becomes a recoverable debt, if the purchaser is operating on an accruals basis: or
• When the amount is collected by the purchaser, if operating on a cash basis.

7. Goodwill & statutory licences

The purchase of business goodwill and also statutory licences (e.g. liquor licence, taxi licence, fishing licence) is a capital asset and is subject to capital gains tax (CGT) upon ultimate disposal. Therefore no tax deduction is available to the purchaser.

The purchaser may be entitled to claim the CGT small business concessions upon disposal of goodwill and these statutory licences.

8. Other intangible assets

A licence relating to the use of a copyright, patent or registered design is an intangible depreciating asset and the purchaser is entitled to a deduction over its effective life. The Tax Act prescribes an effective life for certain intangible depreciating assets as follows:

9. Goods & services tax

GST will normally apply when purchasing a business unless the supply is GST-free. This commonly occurs when the going concern exemption is applied and reflected in the contract of sale.

The GST going concern exemption may also apply where the purchaser is also acquiring the business premises.

10. Business structure

The purchaser will need to consult their accountant to determine the most appropriate structure for operating the business. This could either be a company, unit trust, family trust, partnership or as a sole trader.

Where the purchaser is also acquiring the business premises, it is preferable for asset protection purposes to purchase the premises in a separate entity.

The future application of the capital gains tax small business concessions needs to be considered before deciding on the appropriate structure.

BUYING SHARES IN THE COMPANY

It is assumed that the purchaser is buying shares in a single wholly owned Australian Pty Ltd company that operates a business in Australia.

There are usually no GST implications to the purchaser or buyer upon the transfer of shares as this is constitutes an exempt financial supply.

A number of additional taxation issues need to be considered when buying the shares in a company as the purchaser is automatically assuming any outstanding liabilities of the company.

Where issues are identified the risks can be mitigated by using the income tax consolidation provisions, with appropriate post-sale restructuring, although this would involve some additional costs that should be factored into the negotiations with the vendor.

Some of the issues to consider include:

1. Tax status

Under the system of self assessment, the company’s income tax returns will not have been reviewed in any detail by the Taxation Office unless the company has been the subject of a tax audit. Some of the items that require detailed examination include:

• Review tax returns for the past four years and supporting work papers, including detailed reconciliations of profit/loss as per the financial statements and taxable income/loss. Confirm that the tax returns have been lodged.
• Review certain potentially contentious expenses claimed for the past four years to confirm deductibility (e.g. repairs & maintenance, legal fees, interest paid, domestic and overseas travelling and entertainment).
• Request a copy of the ATO Integrated Tax Account from the company’s tax agent to confirm that all tax obligations are up-to-date.
• Review copies of Fringe Benefits Tax (FBT) returns and supporting work papers for the past four years. Confirm that all FBT returns have been lodged and that fringe benefits tax has been correctly classified and calculated.
• Review copies of company franking accounts for the past four years, including details of dividends paid and the extent of franking. Check whether there is any liability for franking additional tax, franking deficit tax, or deficit deferral tax.
• Review copies of both accounting and tax fixed asset registers and related fixed asset reconciliation schedules for those years.
• Review any bad debt deductions claimed for tax purposes over the last four years to ensure that the debts were genuinely bad and written off prior to the end of the relevant income year.
• Assess whether any transactions may not have been undertaken on arm’s length (market value) basis between related parties.
• Determine whether any debts owed by or to the company have been forgiven in the past four years, and if so, what tax adjustments or capital loss claims resulted.
• Where there are loans to shareholders or their associates, check that interest and principal repayments have been correctly calculated and that a properly executed loan agreement is in place.
• Review copies of any correspondence with the Tax Office for the past four years to identify if there are any disputes including:

• all private ruling requests, requests for the Commissioner’s opinion or objections lodged, and all responses received;
• requests for an amended assessment; and
• requests for information from the Tax Office, whether as part of a formal audit or otherwise and all responses provided. Otherwise confirm that the company has no knowledge of any intended audit activity.
• Review copies of internal and external advice to identify any aggressive tax positions taken in tax returns for the past four years and determine potential tax shortfall penalties.

2. Trading stock

Confirm that trading stock has not been undervalued by the company in its tax returns for the past four years. If so, there may be a substantial hidden tax liability going back for many years and this will impact on the value of the company.

3. Capital gains tax

• If acquiring a controlling interest in the company, no adjustment should be made to the purchase price for any assets acquired prior to the introduction of capital gains tax (CGT) on 20 September 1985. This is because the Tax Act deems all of the pre-CGT assets to have been acquired at their market value on the date the shares in the company are purchased. Consider obtaining a formal valuation of the relevant assets to substantiate the commencing cost base for CGT purposes.
• The current market value of any substantial post 19 September 1985 assets needs to be determined so that the purchaser can take into account and adjust the purchase price for the future CGT liability that will arise when the assets are eventually sold.
• Determine whether there have been any capital gains tax rollovers to the company since 20 September 1985. Obtain details of the assets involved, their cost base and potential market value at the time of transfer.
• If acquiring a minority interest in the company, the purchaser needs to consider the possible application of the capital gains tax small business concessions upon future sale of the shares. One of the conditions for claiming the concession is that the individual must hold at least a 20% shareholding (directly or via interposed entities such as trusts).

4. Tax losses

If the company has income tax or capital losses, obtain a schedule of these losses and review details of losses utilised during the past five years to ensure that the company has satisfied either the “continuity of ownership” or the “same business” test from the start of the loss year through to the end of the income year.

Obtain details of any changes in share ownership of the company since incorporation to assist in this review.

If acquiring a controlling interest (i.e. 50% or more), the losses can only be carried forward against future profits if the company continues to satisfy the “same business test” This means the company must continue to carry on the identical business.

When negotiating the purchase price for the company, do not allow for the future benefit of the tax losses unless it is certain that the company will obtain those benefits.

5. GST & PAYG obligations

• Review GST returns for all periods from 1 July 2000, including summary sheets, schedules and other documents used in the preparation of the BAS returns.
• Obtain and review copies of all accounts from the Tax Office (e.g. income tax and integrated client account). .
• Review copies of any Recipient Created Tax Invoice agreements, sample copies of invoices and adjustment notes issued by the company.
• Confirm that all BAS’s have been lodged for the period since 1 July 2000 and payments have been correctly made for GST and PAYG.
• Review the status of independent contractors to ensure they are properly classified. There could be hidden liabilities for PAYG withholding, superannuation guarantee contributions, Workcover and payroll tax where the contractors are working under normal employee conditions.

6. Payroll tax

• Determine whether payroll tax returns have been lodged and payroll tax paid in each jurisdiction.
• Consider whether the entity is appropriately grouped or not grouped for payroll tax purposes.
• Assess whether the amount of salary and wages shown in the accounts approximates the amount declared for payroll tax.
• Review the status of independent contractors to ensure they are properly classified.
• Determine whether there are any outstanding assessments or refund claims.

7. WorkCover

• Review copies of WorkCover premiums for the past three years.
• Review WorkCover correspondence to determine whether there are any documents advising of WorkCover premium rates or industry classifications, outstanding claims or claims history.
• Determine whether WorkCover premiums and payments are up to date.
• Review the status of independent contractors to ensure they are properly classified.
• Assess whether there are any outstanding obligations, assessments or challenges currently undertaken in relation to WorkCover.

8. Superannuation

• Review copies of all superannuation guarantee payments for the most recent financial year.
• Review the status of independent contractors to ensure they are properly classified.
• Determine whether all superannuation guarantee payments have been made.
• Determine whether there have been any shortfall penalties in the past four years.

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There is no one best business structure. Every person’s circumstances are different so what might be an appropriate structure for one person may not be an appropriate structure for another. Further, often more than one type of structure may suffice and so a choice needs to be made.

The most important thing is to ensure that the final decision is an informed decision. That the taxpayer’s particular circumstances have been taken into account and that all the advantages and disadvantages of the chosen structure had been considered.

When selecting a structure for your business it is also important to recognise that circumstances change and so where possible a structure must be flexible enough to cope with changes to the taxpayer’s circumstances that may occur in the future. It must also be flexible enough to cope with changes that are outside the taxpayer’s control such as changes to the tax laws, other laws, the industry in which the taxpayer operates, personal circumstances etc.

Often these changes will require restructuring in the future or maybe even a change in structure. However, restructuring or a change to a new structure can often have costly consequences in terms of taxes, stamp duty etc. and so, where possible, a structure that provides flexibility, can often cope with change without incurring these costs.

There are many different factors to take into account when selecting a structure and many of these are listed below. It is important to recognise that even if two taxpayers have exactly the same circumstances they may, quite appropriately, choose different structures. For example, one taxpayer may feel more comfortable owning assets in their own name and operating as a sole trader rather than using an entity such as a company or trust because they have little understanding of companies and trusts. Whereas another taxpayer who understands companies and trusts may choose to operate their business through a company or trust.

A very important issue to consider is what is the taxpayer trying to achieve and for whom. Often a taxpayer’s objectives include one or more of the following:

• Asset protection;
• Flexibility;
• Tax effectiveness;
• Ability to access capital;
• Ease of administration;
• Minimal establishment and ongoing administration costs;
• Allows for growth;
• Allows for the business to be sold if desired;
• Succession planning – allows the business to be passed to children and later generations cost effectively;
• Allows for current tax planning;
• Allows for future tax planning;
• Provides for retirement.

Factors to take into account when selecting a structure

Below is a non-exhaustive list of information and factors to obtain and consider when deciding on a structure.

1. The taxpayer’s personal circumstances

• Immediate family members’ ages and incomes;
• Other relatives that the taxpayer may want to benefit;
• Assets owned and in whose name and their value;
• Liabilities.

2. The taxpayer’s current superannuation arrangements

• Does the taxpayer have a SMSF?

3. The taxpayer’s personal succession planning arrangements

• What does the taxpayer’s will provide?

4. The taxpayer’s business succession planning arrangements

• When does the taxpayer intend to retire;
• Is it intended for the business/asset to pass to the taxpayer’s children?
• Is it intended to bring third parties into the business in the future?
• What would the taxpayer like to happen if the taxpayer becomes incapacitated or dies?

5. Full details of the business

• Will personal services income be derived?
• What is the expected turnover;
• In what type of industry will the business operate?
• Is the business restricted from operating in any particular type of entity?

6. Who will be the owners of the business?

• Will it be owned by the one family or will there be independent parties?
• What percentage will each party own?

7. How will the business be financed?

• Debt or equity?
• Will money be borrowed externally or from other entities within the family group?
• Will the finance need to be repaid in the future?

8. Will the business require significant capital assets?

9. Is it intended to acquire business premises?

10. Are discretionary distributions of income or capital required?

11. Will the business employ people?

• How many employees are expected?
• Will those employees be third parties or family members?
• Will it engage contractors?
• How many employees and contractors is it expected to engage?

12. Which structures does the taxpayer understand and would be comfortable to operate?

• Will the taxpayer receive ongoing assistance from their tax adviser to run the structure or do they wish to run it themselves?

13.             What are the short and long term plans for the business?

• Expected Growth rate;
• Intention to allow outside investors (debt or equity);
• Future turnover and profit forecasts;
• Is the intention to sell the business in the near future?
• Which has greater priority; minimising tax on annual income or on a future sale of the business?
• Is it intended to float in the future?

14. Will tax losses be made initially, if so for how long?

15. Will the taxpayer want to access the small business capital gains tax concessions?

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Family trusts can be a very tax effective way of managing wealth, and a useful part of an overall strategy for wealth accumulation and asset protection.

What is a family trust?

The term family trust refers to a discretionary trust set up to hold a family’s assets or to conduct a family business. Generally, they are established for asset protection and tax purposes.

A trust is established by a person called the settlor” and a trustee is appointed to hold the trust assets on behalf of the beneficiaries.  The trustee can either be a person or a company.

Beneficiaries have no right to the assets owned by the trust, which are controlled by the trustees who run the trust according to the rules laid down in the trust deed. Income is distributed at the absolute discretion of the trustees.

Family trust election

Where a family trust has incurred a loss in a particular year, or in certain situations is in receipt of franked dividends, it needs to make a ‘family trust election’ in order to recoup the loss in a future year.

If this election is made, distributions may only be made to beneficiaries who are within ‘the family group’. This can include a broad list of relatives within two generations.

A consequence of making a family trust election is that any distributions outside the family group of the family trust is taxed at the top marginal rate plus the Medicare levy (currently 46.5%).

Streaming net income

Income streaming is where the trustee resolves to make specific distributions of net income to specific beneficiaries. The trust deed must allow the trustee to attribute distributions in this way, the accounting records of the trust must separate the trust income and the administration and management of the trust must be consistent with this attribution and allocation.

Importantly, the distribution minutes must be drafted consistently with such attribution and allocation.

Some uncertainty has surrounded trusts recently regarding “income streaming”. This has now been largely cleared up with the Government passing legislation allowing streaming of capital gains and franked distributions for the 2011 and future financial years.

The Government has also announced that it will undertake a complete rewrite of the tax law dealing with trusts in an effort to provide greater certainty to trustees and beneficiaries, and this is expected to occur in the next 6 to 12 months.

Flexibility

Unlike self managed superannuation funds (SMSFs), trusts have no contribution limits, can hold assets for future generations, and there are usually no restrictions on what a trust can invest in or on how much it can borrow (unless specified by the trust deed).

In addition, beneficiaries of trusts don’t need to wait for retirement to sell assets and access cash (i.e. the money is not locked away.

When the person who set up or controls the trust dies, this control can be easily transferred to the next generation with no immediate tax consequences. With an SMSF, a member’s death can trigger a taxable capital gain for his or her beneficiaries.

Asset protection

Family trusts can provide protection for family and business assets particularly in circumstances of business failure. When assets are owned by a trust, it can be difficult for creditors to gain access to them, so trusts can be a very attractive option for small business owners.

Tax advantages

Trusts are most beneficial when one family member is on the top marginal tax rate.  Instead of owning assets in that person’s name and paying the top tax rate on income they generate, the investments can be owned by the trust and income distributed to lower income earners in the family.

Preparing distribution minutes

The days of completing generic minutes without particular regard to the trust deed are now over. Distribution minutes be carefully considered and prepared taking into account, among other things, the provisions of the trust deed, recent case-law and ATO practice.

Sham transactions

The ATO and the courts can consider as ‘shams’ various actions purporting to be valid distributions of trust income. These include, for example, distributions made to beneficiaries that are unaware of their entitlement, distributions made invalidly and distributions made by journal entry where there is no intention at all to pay this out in cash.

Drawbacks

The main drawback of a trust is the possibility of family disagreements about who is in charge. There can also be complications in estate planning.

Trust assets do not form part of an estate. For example, a beneficiary might indicate in a will that any distribution from a trust go one way, whereas the trustees might decide to send it another way as they have a duty to act in the interests of all beneficiaries.

Perhaps the best approach is to use a combination of a trust and an SMSF to manage wealth. Superannuation has its virtues until contributions caps cut in, at which point family trusts may become a good option.Similar Posts:

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Asset protection becomes more important as a person’s wealth increases and as a person faces greater risks. These risks often arise when a person works in a managerial or partner capacity in an organisation, such as a director, partner or as a trustee. A person’s wealth is also at risk where they run a business or incur debts in their own name. As such they may wish to protect their wealth and assets as much as possible.

In situations where a person’s wealth is at risk structuring becomes important. The best form of asset protection a person can achieve is not to own any assets in their own name. Usually this means having assets owned by a spouse or an entity such as a company or trust. It is important to understand that asset protection techniques are not secure.

There has been a recent crack down on asset protection rules which stem from situations where taxpayers use asset protection structures to avoid liability. Asset protection structures are particularly hard on creditors who have the last claim to assets in bankruptcy situations. The tougher rules are directed at situations where assets are diverted for the purpose of defeating creditors’ claims.

Under these rules the Bankruptcy Act allows a trustee in bankruptcy to claw back or defeat certain transactions undertaken by a bankrupt before they become bankrupt.  For example, they allow a trustee in bankruptcy to claw back assets that the bankrupt has transferred to a relative, company or trust before becoming bankrupt for the purpose of defeating their creditors.

However, these special rules have limitations and often will not apply where a person has structured themselves properly from the outset and at a time where there was no indication or thought that they would get into financial difficulty.

Discretionary trust for asset protection

The discretionary trust has become widely viewed as an effective way of protecting assets. The reason that discretionary trusts have been so popular stems from the fact that a beneficiary’s interest in a discretionary trust has not traditionally been considered to be “property”. This means that if the beneficiary becomes bankrupt or is sued personally, assets held in the discretionary trust are protected against those claims because they do not form part of the beneficiary’s property or assets.

Further, if the trustee of the trust is sued (for example the trust gets into financial difficulty) then the beneficiaries are not liable to make up any shortfall (this is the same for shareholders in a company where the company gets into financial difficulty). So a discretionary trust has the best of both worlds, if the trust itself gets into difficulty the beneficiaries are protected and if a beneficiary gets into difficulty the assets of the trust are protected.

Compare this with a unit trust or a company, where if the unitholder or shareholder is made bankrupt or is sued personally, then one of the assets that unitholder or shareholder owns are their units or shares in the unit trust or company.  As such the assets of the unit trust or company are not fully protected. This asset protection advantage is one of the reasons that many people hold assets in discretionary trusts.

Despite the long held view that discretionary trusts are the primary way of protecting a person’s assets a recent decision by the Federal Court has cast some doubt on this proposition. In the Richstar case the Federal Court held that in the particular circumstances the beneficiary had an interest that came within the meaning of “property” as defined in s.9 of the Corporations Act. The Court found this on the basis that the beneficiary controlled the trust in such a way that it was his alter ego and he had effective control of the assets in the trust and therefore had a contingent interest in the trust.

It is important to understand that all the Court ordered was that the trustees had to disclose the assets of the trust to the receiver of a beneficiary of the trust. No order was made that the assets of the trust could be obtained by the beneficiary’s receiver.  However, it highlights that asset protection strategies are never 100% secure.

For asset protection reasons it is usually best to have a company act as trustee. This is because a trustee is personally liable for the debts and transactions they undertake on behalf of the trust as the trustee is the relevant legal entity. Therefore, it is the trustee that is sued if anything goes wrong.

Whilst the trustee can limit their personal liability by making it clear at the time they entered into the transaction that they contracted in their capacity as trustee only and not on their own behalf, this may not always be clear. The trustee may then have a fight on their hands to protect his personal assets. Having a new company which acts as trustee and not in any other capacity should prevent this argument from arising.

Finally, whilst it is best practice to have a corporate trustee so that the principal’s personal assets are generally not at risk, it must be understood that the directors of a corporate trustee can be made personally liable for the liabilities of the trust where, for some reason, the company is not entitled to be fully indemnified out of the assets of the trust. For example, where the company acts beyond its powers as set out in the trust deed or there has been a breach of trust by the corporate trustee.  Further, directors of a corporate trustee can be held personally liable for taxation offences of the trustee company.Similar Posts:

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