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LAW5230 Taxation Law- Income Tax Assessment Act

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Marzena is a property developer and operates her business as a sole trader. As at 1 July 2016, Marzena owned 7 blocks of land with a value of $72,000 each. Marzena had purchased these blocks on 1 July 2012 at a cost of $53,000 each. During the income year ended 30 June 2017, Marzena acquired a further 10 blocks of land in Brisbane with the intention of preparing these blocks for sale at a profit. The 10 blocks of land cost $81,000 each. Marzena also incurred $3,700 for each new block in relation to land clearing costs and preparation costs. During the year, Marzena sold 11 blocks of land for $100,000 each. Further, she also sold on of these blocks of land to her brother for $60,000. This was a similar block to one of those sold throughout the year. Additionally, on 1 September 2016 Marzena entered into a contract to sell an entirely separate block of land for $79,000.

She had originally purchased this smaller block in Springfield in March 2015 for $81,000. She had intended building an office block on the land to be used as a ‘shop front’ for her business where she could meet with potential clients and conduct her daily activities. However, after submitting plans to council (at a cost of $1,800), Marzena was advised that due to planning restrictions in the area, the building would need underground parking and would therefore cost substantially more. Marzena then decided to sell the land and look for a block in a more suitable area. Advise Marzena as to whether she will have any ‘assessable income’ for the year ended 30 June 2017 as a result of the above transactions regarding her business and also advise whether the sale of the separate block of land would be ‘ordinary income’ for the year ended 30 June 2017.


Toowoomba Drilling is a medium sized business which specialises in large scale surface and underground drilling. The business operates through a private company, Toowoomba Drilling Pty Ltd. The company has a turnover of approximately $1.5 million and employs around 12 tradespersons and 5 administrative staff. The value of the large machinery used in drilling has a market value of approximately $20 million. The business enters into contracts with property developers, private land holders and the QLD State Government. It specialises in large infrastructure projects where drilling for pipework is required.


As part of a major new rail infrastructure project the QLD State Government offered large grants to local businesses for the purchase of new machinery that could be used in building the new railway. Toowoomba Drilling Pty Ltd entered into a contract with the State Government to accept $550,000 in funding for the purchase of new machinery.Toowoomba Drilling received a lump sum of the full amount in June 2017. Part of the terms of the contract were that Toowoomba Drilling would work exclusively on the rail project for a period of three years, otherwise a pro-rata of the financial assistance would have to be repaid. 


Required:
Briefly discuss with reference to appropriate legislation, case law and/or rulings whether Toowoomba Drilling Pty Ltd should account for income on a cash or accruals basis.
Discuss with reference to appropriate legislation, case law and/or rulings whether the State Government funding would be either ordinary or statutory income and whether it would be derived in the 2017 income year.

Answer:

Issue

In this case, Marzena is a property developer and has purchased block of land for developing into building and sales. However, due to restriction in the planning the selling of land by developing it into building will cost substantially more. Therefore, it was decided to sell the land. The issue here is to determine whether any assessable income has been derived and the sale of separate block of land is an ordinary income.

Laws

The laws and rules that have been applied are:

  • The section 4-1 of the Income Tax Assessment Act 1997;
  • The section 6-5 of the Income tax Assessment Act 1997;
  • The section 6-10 of the Income Tax Assessment Act 197;
  • The section 100-20 of the Income Tax Assessment Act 1997;
  • The section 100-25 of the Income tax Assessment Act 1997;

 Application

The section 4-1 of the Income Tax Assessment Act 1997 provide that every taxpayer that is an individual, business or other entity is required to pay tax on the taxable income. The section 4-15 of the ITAA 1997 provides that the taxable income is calculated by subtracting the allowable deductions from the assessable income (James et al. 2015). The assessable income include both the ordinary income and the statutory income. The Section 6-5 of the Income Tax Assessment Act 1997 state that any income derived from the on ordinary concept is known as an ordinary income. The section 6-10 of the ITAA 1997 states that income that are not regarded as ordinary income are treated as statutory income (Tran-Nam et al. 2014). It is also provided in the above-mentioned sections that in case of a resident taxpayer the income derived from all the sources are taxable. The income that is derived from the sale of capital asset is regarded as statutory income. In this case, for determining whether an income is an ordinary income or statutory income is necessary to determine the nature of income.

That means this has to be assessed whether that block of land is a capital asset because if it is a capital asset then income from the sale of land will be regarded as a statutory income (McLaren 2014). The Section 100-20 of the income Tax assessment act 1997 provide that capital gain or loss arises only in case of CGT events. The CGT event arises at the disposal of the CGT assets. The section 100-25 of the ITAA 1997 provide certain examples of the CGT assets. This example includes land, building or shares. Therefore, it can be said that the selling of land is a CGT event if the land is not used for the purpose of business as a closing inventory (Brink 2015). In order to determine whether the income from the sale of land is a capital income or ordinary income it is important to determine the intention for the purchase of land. In the given case, it was provided that the land was purchased for development and selling it for profit so it can be seen that it was regarded as an inventory. Therefore, the income derived from the sale of land should be regarded as ordinary income.

Conclusion


Based on the above discussion it can be said that the income derived from the sales of land is assessable and this should be form part of the assessable income.

Issue

In this case, the company is engaged in the business of underground drilling. The company has entered into a contract with the Queensland state government for a major railway infrastructure project. In this case, the issue is to determine whether the income received by the company should be accounted on cash or accrual basis. In addition to this, it is to be determined whether the funding received from the government is statutory income or ordinary income.

Law

The laws and rules that have been applied are:

  • The taxation Ruling 98/1;
  • The Taxation Ruling 2006/3;

 Application

The Taxation Ruling 98/1 in para 16 states that for the purpose of section 6-5(2) and (3) of the Income Tax Assessment Act 1997 there are primarily two methods of accounting. These two methods of accounting are earning method and receipt method (Taylor and Richardson 2013). The Para 18 of the ruling state that the receipt method of accounting is appropriate if the income is derived by an employee, nonbusiness income and income derived from business through personal knowledge or skill. The para 20 of the ruling clearly provides that earning method is appropriate for determining income derived from business. Therefore, it can be seen that the taxation ruling clearly states that the earning method should be applied for accounting the income received from business (Brown et al. 2015).

The Taxation Ruling 2006/3 deals with the government payment to the business in the form of funding and other assistance. The Para 10 of the ruling provide that the government payment to the business that are made for the purpose of continuing the operation should be included in assessable income of the recipient in the year it is derived (Fitzsimons and Carr 2014). If the recipient agrees to sale or sacrifice, a part of the yield as a consideration for funding then in such case GPI is not required to be included in the assessable income. In this case, business has received funding for the machinery without any condition for sacrificing profit (Tran 2015). However, if the three years condition is broken then the company will be required to repay the loan. In that case, in the year, the funding has to be repaid then it could be recognized as an expenses. In the current year as the funding is received for the plant, it should be included in the assessable income.

Conclusion 

Based on the above discussion it can be concluded that as Toowoomba Drilling Pty is running a business therefore based on the Taxation Ruling 98/1 the income should be accounted on accrual basis. The Taxation Ruling 2006/3 provide that funding visit from the government that are not repair well should be included in the accessible income in the year of the receipt. Therefore, in this case the funding received for the machinery should be included in the assessable income.

Capital Gain Tax Small business concession

The main aim of this research report is two examine the capital gain tax concessions given to small business. The report focus on the conditions that must be satisfied for availing the concessions. In Australian economy, small business plays a very important role by contributing heavily in economic growth and Employment. It is roughly estimated that almost 97% of the business in private sector are small business in Australia (Travers 2014). It is estimated that almost 3.6 million people or 49% of employment of the private sector employment are provided by the small business in Australia. Therefore, it can be said that small business is an important component of Australian economy and it is the subject of research in this report.

Introduction and Implementation of CGT 

The Australia is one of the most important member of the Organization for Economic Development and Cooperation countries. In the OECD, it was the last member country to impose the tax on the capital gains by introducing Part IIIA of the Income Tax Assessment act 1936. The capital gain tax become effective on 20 September 1985 and is covered by section 160A to 160 ZZU. It is seen that prior to the introduction of the capital gain tax income derived from capital gain was not taxed but ordinary income was taxed (Geljic et al. 2016). The main reason for introducing the Capital Gain tax is to remove the unfair advantage from the taxpayers that derived income from capital gain than the taxpayer that derived income from ordinary activities.

The capital gain tax is applied on disposal of assets that have been acquired on or after 20 September 1985. The assets that have been purchased before 20 September 1985 are generally exempted from tax. This type of assets are referred to as the pre CGT assets. In the capital gain tax regime, there are no separate tax that is charged for the capital gain. The section 6-5 and 6-10 of The Income Tax Assessment Act 1997 state that the income of the taxpayer is assessed for all the statutory ordinary income derived (Sadiq and Marsden 2014). The Capital gain is considered as the statutory income and is taxed at the marginal rate. The section 100-20 of the Income Tax Assessment Act 1997 provides events that may result in capital gain or loss include disposal of shares in a company, real estate, interest in a trust and many others (Evans et al. 2014). In simple terms, it can be said that capital gain tax is a tax on the profit earned from selling the asset that are not directly involved in the ordinary course of business.

The member countries of the organization for economic development and cooperation already have capital gain tax regime in place. The capital gain tax laws of this country shares some common features and principles. In a report, comparing the Australian taxes internationally it has been found that there are mainly two approaches for taxing capital gains within the member countries of organization for economic cooperation and development (OECD). In the member countries of organization for economic cooperation and development (OECD), the income from capital gain is regarded as an ordinary income and the personal tax rate is applied. In some cases, the capital income is treated separately from ordinary income and these incomes are taxed at a different rate (Hicks and Tran 2014).

The figure above shows that the tax rate of Australia is 42.6% the highest taxed country is Netherlands and the lowest taxed country is Estonia. On analyzing the above figure, it can be said that the tax arte of Australia is considered as one of the highest. Therefore, as the capital income is taxed at the marginal rate so it can be said that the tax rate applied on the capital gain is one of the highest in Australia.

Objective of the CGT legislation

   The new capital gain tax law was announced on 21 September 1999. The treasury noted that there are certain necessary reasons for change in legislation, they are:

  • There is a need for better asset management so that the individuals can allocate the natural resources properly.
  • The existing capital gain structure reduced the economic efficiency of the resources.

Therefore, a need was felt to change the existing capital gain structure. The system of removing indexation and averaging from the capital gain structure has made Australian tax rate in line with other countries. This has helped in reducing the taxpayer by removing the complexity of the taxing system. It is widely believed that the burden of business tax is heavier on small businesses. The higher taxes results in small savings for the small business as a result the Australian economy is negatively affected (Ma 2015). The main objective for revising the law was to help the small business for maintaining the important role in the economy of Australia. The legislation was made two extend and rationalize the small business concession for the CGT. In this, various provisions were merged and the cost of compliance was reduced.

The treasurer states that the main objective of the small business CGT concession was to provide excess funds in the hands of the small business owners at the time of retirement or expansion of the business. It was believed that this assistance would help the Australian economy by fueling economic growth, as individuals will be willing to invest in small business with their limited available funds (Tucker 2016). The small business concession for capital gain tax was aimed to provide relief to the owner of the small business if the owner decides to sale and purchase the business, or become incapable to continue the business or retire. The other aim of the small business concession for the CGT is to encourage the culture of savings and investment. It was noted by Evan that in the modern taxation system the heavy burden of tax falls on the individual and small business. Therefore, the aim was to reduce this burden of tax (Sadiq and Marsden 2013).

CGT Small business Concession

The Division 152 of the Income Tax Assessment act 1997 provide that there are four types of small business capital gain tax concessions. If the small business taxpayer satisfies these conditions then by the application of this concession the capital gain tax payable is reduced or eliminated (Somers and Martins 2016). The four type of capital gain tax concessions that are available to the small business are:

  • The full CGT exemption if the assets is held  for more than 15 years;
  • If the active assets test is satisfied then 50% reduction of capital gain tax is allowed;
  • The exemption in the payment of capital gain tax for the purpose of retirement;
  • A relief related to roll over;  

In all the capital gain tax concession, the basic condition is satisfied. In general, if the requirements are satisfied then it is possible that concessional treatment is given for the capital gain.

The 15 years Small business concession

The small business is not required to pay capital gain tax for the CGT event if the business has continuously held the CGT assets for more than 15 years prior to the CGT event. In addition to this to the entity should be an individual and the individual should be permanently incapacitated or is retiring before the CGT event (Kenny and Blissenden 2014). If the entity is, a trust or company then if there is a controlling individual throughout the period of ownership and control then in such case the entity will qualify for CGT concession. It is important that the controlling individual should retire or is permanently incapacitated just before the CGT event.

 In case of active assets test it is generally required that, the capital gain tax assets should be normally active for at least half of the period of ownership. In the case of 15-year exemption, this rule has been slightly modified (Somers and Eynaud 2015). It is required that this CGT assets should have been an active assets for at least half of the 15 years period ending at the time of CGT event or termination of the business. It is the requirement of 15 years CGT exemption that the CGT assets should have been continuously held for 15 years and is required to satisfy modified version of the active assets test.

There are certain special treatments that are given to the CGT assets that are acquired under the subdivision 124B the rollover relief or subdivision 126A the breakdown of marriage. In case of this involuntary disposal of assets, the law allows the continuation in the ownership period. For the purpose of exemption, the replacement asset is regarded as have been purchased at the time of acquiring the original asset (James and Maples 2016). The capital gain that qualifies for 15 year exemption shall be completely disregarded and is not required to be taken under subsection 102-5(1) in the method statement. It should be noted that if there is any loss in the disposal of the long-term asset then such loss could be reduced from other capital gain. If the capital gain made by the trust or company qualify for small business 15 year exemption then the capital gain tax should be disregarded. The trust or the company should distribute the concession received from the CGT exemption to the stakeholders within the time limit of 2 years of the CGT event (Evans et al. 2015).

Reduction of 50% by the small business

In case the small business entity is not qualified for 15-year exemption but has been able to satisfy the basic conditions then a 50% reduction is available to the small business entity. This concession could be in addition to the general CGT discount that is available to an individual or trust. It is possible for a small business to reduce the capital gain by 75% so this could be 25% of the original amount of the capital gain (Smulders et al. 2016). This is possible by fast applying the general capital gain tax discount of 50% and then further reduction is possible by applying the small business 50% reduction. The small business can apply the current losses and the unapplied net capital losses against the capital gain that have been made in the current year. In addition to this, the capital gain amount can be further reduced by applying the small business roll over or the retirement exemption. The taxpayer that qualifies for both the exemptions can make the choice in the manner in which the exemption will be applied (Butler and James 2016).

Retirement exemption for the small business

The taxpayer that is small business is allowed to disregard any capital gain arising from the CGT event if the amount received is used for the purpose of retirement of the taxpayer. In this case, a limit of $500000 in the concession is applied for the lifetime of the taxpayer. The taxpayer is allowed disregard the capital gain to the extent the exemption is available. However, the age of the taxpayer should be 55 years or more (Kenny 2014). In case the taxpayer is younger then the proceed from the capital gain should be used for superannuation fund, unauthorized deposit fund or savings account related to the retirement. The retirement exemption for small business is applied in addition with the 50% deduction available for small business. The taxpayer can apply the general CGT discount, 50% for the small business and then the retirement exemption. As a result, of this only 25% of the capital gain will be used against with household limit of $500000. It should be noted that this exemption is available to be individual or the person carrying out business as a partner are sold to the proprietor. In case of trust or companies there should be one or more controlling individuals. If the trust or the company does not have the controlling individuals then in such case the exemption is not available.

In case of an individual, the person actually does not have to retire to make an Eligible Termination Payment for selecting the small business exemption. The amount that is chosen for the retirement exemption is treated as eligible termination payment and in this case, the retirement is not to be regarded as perquisite. In case of the company, it should be noted that there is a need to have the termination from office in order to qualify the payment for eligible termination payment as per the ATO ID 2002/493.

Small business rollover

The taxpayer is allowed small business rollover concession for delaying the payment of capital gain tax arising from the capital gain tax event for an active asset. In order to get the relief the taxpayer is required to replace the assets within the limited time. The assets that is replaced must be an active assets or become an active assets. The replaced assets is not required to be used for the same purpose as the original asset was used and the assets is also not required to be used in the same business (Chung 2016). If the asset replaced is a share in the company or an interest in the trust then the small business entity must be  regarded as controlling individual of the company or trust just prior to the accusation of shares of the company or interest in the trust. In cases where the rollover is selected then the capital gain can be rolled to the extent of the cost base of the replaced asset. Therefore it can be said that the effect of the roll over is ignored to the extent it does not exceed the cost base of the replacement asset.

Importance or significance of the small business concession

The taxpayer can avail small business concession contained under subdivision 152A of the Income Tax Assessment Act 1997 by satisfying certain conditions that is necessary for getting the CGT relief. In this section of the research report the significance of the concession are discussed so that the need for the concession can be evaluated and changes can be suggested (Burgess 2016). The main benefit of the CGT concession is that it helps in substantial reduction and elimination of the capital gain tax. The concession provides significant benefit to those satisfying the requirement of the concession. However, the test that are applied in determining the qualification of the concession has received significant criticism for its complexity and lack of fairness. The small business has become an important part of the economy and recently the focus of the government is on the prosperity and growth of the small business. The government is planning to do this by offering tax incentives (Tran?Nam et al. 2016).

In a study surveying the tax practitioners by Evan it was found that many of the practitioners is of the view that the concession are very complex to understand. There are small group of practitioners that are of the opinion that the CGT concession provided to the small business that was introduced in the year 1997 is more rigorous and troublesome to apply. Australian Taxation Office has classified the business in terms of the annual turnover (Smulders 2013). The business that have annual turnover less than $2 million is considered as micro business. It should be noted that the 96% of all the business are the micro business and they contribute just 12% of the taxation revenue. In the compliance program issued by the ATO, it is clearly stated that it will be difficult for the micro business to apply the capital gain tax concessions because of lack of knowledge and understanding. This suggest that for the majority of the business the application of the small business concession is a complex process. Therefore, it can be said that the significance of the concession is reduced, as majority of the organizations cannot utilize the benefit of the concession (Campbell 2015).

Evaluation of the CGT small business concession using good tax system

The CGT regime is evaluated for the small business concession using the concepts related to the effective tax system. In this, the evaluation is done based on the concept of equity, efficiency and simplicity of the taxation system.

Equity

The concept of equity has two components equity and horizontal equity. The horizontal equity refers to the concept of fairness that demands equal treatment for all in the same economic circumstances. This means irrespective of the legal structure the business should be treated in the same manner. The principle of vertical equity provides that there should be some degree of fairness in relationship between the peoples of two Income groups. This means those have higher income should pay more taxes (Maples and Karlinsky 2014). The concept of equity has close ties with equality and fairness. In order to be fair it is required that the taxpayer of same income group should be equal tax and those have higher income tax. This this will ensure that both vertical and horizontal equity is maintained. The capital gain tax was introduced for promoting equity in the taxation system. The main aim of the CGT was not to raise revenue but to be the measure of integrity of the taxation system.

Efficiency

The efficiency refers to obtaining maximum output by efficient allocation of resources. It is evident that the inefficiency associated with the collection of taxation cannot be completely removed but it can be reduced to the acceptable levels. The efficient taxation system minimizes the distortion in collection of the revenue and helps in maintaining equitable tax burden (King 2014). The rules relating to CGT small business concession is complex as a result the distortion is increased and the efficiency of the system is reduced.

Simplicity

In simple taxation system, the taxpayer will have less difficulty in understanding the rules and regulations. The simplicity has increased by lowering the cost of compliance and administration. The research into the compliance cost of CGT was conducted by the ATO that identified factors that resulted in the increase in cost. The study found that one of the main reason for increase in cost in the complexity of the legislation related to small business concession and the frequency of its change. There has been no sufficient steps that has been taken for reducing the complexity (Woellner et al. 2016). Hence, it can be said that the compliance with CGT small business concession is not simple.

Conclusion

Based on the above discussion it can be argued that the capital gain tax has substantial increased efficiency, equity and simplicity of the taxation system of Australia. The implementation of capital gain tax and CGT concessions was done with the view to increase equity in the system. However, it is acknowledged that complexity of the taxation system still exist in this system of concession as a result efficiency and simplicity is reduced. Therefore, it can be concluded that CGT has served an important purpose for promoting equity but necessary reforms is required for increasing the simplicity and efficiency of the system.

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