General (148)
Trust Distribution
on 2021-09-19 10:02:58
by
Claire Chang
Posted in
General
Beneficiaries Most trust deeds of discretionary trusts will list the primary beneficiaries of the trust being those persons (or entities) specifically named in the trust deed as the objects (i.e. potential beneficiaries) of the trust. As a corollary the general beneficiaries of a trust are those entities or class of entities who are potential eligible beneficiaries based on their relationship to the primary beneficiaries under the trust deed. Accordingly, if a husband-and-wife are the sole primary beneficiaries of a trust, any company or trust under which they may potentially benefit may be regarded as a general beneficiary based on their relationship with such primary beneficiaries if the definition of general beneficiaries under the trust deed is based on this association. Distributions by the trusteeThe trust deed should also be reviewed to identify the specific clauses which empower the trustee to distribute trust income to beneficiaries, and which set out what the trustee must do in order to make a beneficiary presently entitled to a share of trust income by the required time. Compliance with such a clause is critical as an object (i.e. potential beneficiary) of the trust only obtains a vested and indefeasible right to a distribution upon the trustee validly exercising their discretion under the trust deed to appoint them as a beneficiary. Hence, the trustee’s distribution resolution should include references to the relevant clauses identified under the trust deed which grant the power to the trustee to make a beneficiary presently entitled to trust income. Tax Impacts of Potential Distributions Upon identifying the range of potential beneficiaries, the trustee will in practice be required to consider the tax impacts that a distribution of trust income may have on the trust or beneficiaries from an income tax perspective. In particular, the trustee will need to take into account certain restrictions that are effectively placed on the making of distributions to particular beneficiaries from an income tax perspective which may limit the nature of the distribution made or the amount of tax payable on such a distribution. For example, the trustee may distribute certain amounts of trust income or capital to particular beneficiaries so that the discretionary trust can satisfy the pattern of distributions test or the 50% stake test in recouping prior year tax losses. In addition, a trustee of a discretionary trust may also make a distribution of 20% or more of trust income and/or capital to a particular beneficiary in the year that the trust has made a capital gain so that beneficiary is regarded as a significant individual for the purposes of the discretionary trust claiming the 15 years exemption or the retirement exemption under the Capital Gains Tax (CGT) small business concessions. However, the three major restrictions imposed under the income tax law on the making of such distributions comprise the following: 1. The proportionate approach which places limits on the capacity of the trustee to engage in income splitting amongst the beneficiaries. 2 The limits placed on the definition of the income of the trust estate under Draft Taxation Ruling TR 2012/D1 which provides that trust income cannot include ‘notional amounts’ that are only recognized for income tax purposes.3 The existence of a family trust election which would deter a trustee from making a distribution of trust income (and therefore related net income) to a beneficiary who is outside the family group which would be subject to punitive family trust distribution tax. Proportionate Approach The trustee makes a beneficiary presently entitled to a share of the income of the trust estate (being the distributable income calculated in accordance with the trust deed) under section 97(1) of the ITAA (1936) that beneficiary will be assessed on an equivalent share of the trust’s net income (being the trust’s taxable income as calculated under section 95(1) of the ITAA (1936)). Accordingly, where a beneficiary becomes presently entitled to, say, 50% of the income of the trust estate (as reflected in the distributable income shown in the trust’s accounts) that beneficiary will be proportionally entitled to 50% of the net income of the trust for tax purposes (as disclosed in the trust’s tax return). The application of this proportionate approach effectively precludes the trustee from distributing specific amounts of trust income to particular beneficiaries based on a ‘quantum’ approach as once the fractional interest of the beneficiary to trust income is determined the beneficiary will be presently entitled to an equivalent fractional share of the trust’s net income. Thus, once the percentage share of trust income is set there is no capacity to further income split the resulting net income amongst the beneficiaries. Limits on trust income for ‘notional amounts’ Determining the amount of the income of the trust estate for the year is vital to the process of establishing the proportionate share of net income upon which presently entitled beneficiaries will be assessed. Whilst acknowledging that the income of the trust estate will be based on the definition of that term contained in the trust deed, the Commissioner of Taxation has also taken the view in Draft Taxation Ruling TR 2012/D1 that ‘notional income amounts’ which are only recognised for income tax purposes cannot constitute income of the trust estate for trust law purposes. In reaching this view, the ATO contend that there is a statutory limitation on the meaning of income of the trust estate imposed under Division 6 of the ITAA (1936) in that income of the trust must represent a net accretion (i.e. increase) to the income derived by the trust during a particular year which is distributable to beneficiaries. This will be the case irrespective of how the particular trust deed otherwise defines income of the trust estate. As such, this approach essentially places a cap on the amounts of income which can otherwise be included in trust income to which beneficiaries may be made presently entitled. The rationale for the above view is that notional amounts of income which arise in the calculation of the trust’s net income for a particular year cannot represent a net accretion (i.e. increase) to trust income as they are ‘tax-only’ amounts which do not represent any tangible net increase in the value of trust property for that year. Hence, if the trust deed includes an income equalisation clause which defines trust income as being the net income of the trust for a particular year the ATO view is that such trust income must exclude notional tax-only amounts. Such notional income amounts will include, amongst others, franking credits, deemed dividends arising under Division 7A of the ITAA (1936) and a capital gain arising because the operation of the market value substitution rule where no capital proceeds are received on the disposal of an asset. Distributions made outside the family group A further important issue for a trustee to consider when contemplating a distribution of trust income to a particular beneficiary is whether the trust has previously lodged a family trust election. To recap a family trust election is a one-off election made in writing by the trustee of the trust nominating that the trust will be treated as a family trust albeit only for certain purposes of the income tax law. In particular, the lodgment of a family trust election will: • Simplify the rules that must be met by a trustee of a discretionary trust in recouping trust losses; • Enable a subsidiary company of such a trust to trace its beneficial ownership for the purposes of satisfying the continuity of ownership test in recouping its tax losses; and • Retain a beneficiary’s entitlement to use franking credits on franked dividends distributed by the trustee of the discretionary trust where the 45 days holding period rule cannot otherwise be satisfied. Where such an election has been made a test individual will have been nominated which will establish the members of the family group as the identity of all eligible family members will be determined by reference to that primary individual. However, where a distribution is made to a particular beneficiary who is outside the test individual’s family group such a distribution will be subject to family trust distribution tax which is levied at the highest effective marginal tax rate being currently 47%. Thus, a trustee of a discretionary trust must exercise caution so that a distribution is not made to a person or entity which would be eligible to receive such a distribution under the trust deed where that beneficiary is not also a member of the elected family group. Where such a distribution is made it will be subject to family trust distribution tax at the above punitive rate of 47%. This article is for informational purposes only and does not form part of our advice. Please contact our team if you need any assistance. Claire Chang, 0497 131 419, claire.chang@changadvisory.com.au, wechat: clairechang26 Michelle Cui, 0433 539 870, michelle.cui@changadvisory.com.au, wechat: michellejc
信托分配
on 2021-08-22 13:21:16
by
Claire Chang
Posted in
General
信托收入在分配给受益人时保持与受托人收到时相同的特征。例如，如果受托人收到完全免税的股息，则将该收入分配给受益人通常会导致受益人必须将股息收入加总，并有权获得红利抵免。 受托人可以向受益人提供资本收益或红利抵免分配。他们需要根据信托契约有权这样做。这种权力可以是明示的，也可以是暗示的。 • 明示权力：如果信托契约授权受托人分别核算不同类别的收入或资本，并且受益人的权利可能与这些类别相关。 • 暗示权力：如果信托契约授权受托人自行决定分配收入或资本，并且信托契约或相关司法管辖区的信托法没有进一步限制该权力。 红利抵免的分配 受益人可能特别有权获得红利抵免的分配。这意味着他们将对红利抵免征税。这就是出于税收目的的红利抵免流向特定受益人的方式。如果没有特别权益的受益人获得红利抵免分配，则根据他们对信托收入的权利，按比例向所有受益人征税。 资本收益的分配 通过使受益人特别有权获得收益，信托的资本收益可以留给受益人以用于税收目的（即使他们目前没有信托收入的权利）。获得资本收益的受益人被视为拥有额外的资本收益，然后他们将在计算自己的收入年度净资本收益时将其考虑在内。特别有权获得信托收到的资本收益或红利抵免分配的受益人通常需要对收益或分配征税。他们还可以从红利抵免分配中附带的任何税收抵扣中获益。 家族信托的对外分配 信托成为家庭信托的时点是在家庭信托选举生效的时候。选举必须提名一个特定的个人（测试个人）来确定家庭组。当家庭信托的受托人向家庭成员以外的特定个人或成员分配收入或资本时，会受到处罚。家庭信托分配税的税率是 45% 的个人税的最高边际税率加上 2% 的医疗保险税——在 2020-21 收入年度总计为 47%。家庭信托分配税按任何不合规分配的金额（收入）或价值（资本）缴纳。 本文仅供参考，不构成我们建议的一部分。本文基于澳大利亚税务局的指南。如果您需要任何帮助，请联系我们的团队。
ATO ability to collect tax liabilities from principal(s) - Director Penalty Regime Latest Update
on 2021-07-19 03:19:18
by
Claire Chang
Posted in
General
Where an individual carries on business as a sole trader or as a partner in a partnership, they are held personally liable for debts incurred while carrying on the business (as well as personal income tax liabilities). As such, the ATO does not require special collection powers to hold principals liable for taxation liabilities incurred by sole traders or individual partners. A similar outcome applies where an individual acts as the trustee of a trust that carries on business (although the individual trustee has a right to be indemnified out of trust assets). On the other hand, where a business is being carried on by a company (including a company in its capacity as trustee of a trust or as a partner in a partnership), the director penalty notice (‘DPN’) rules contained in Division 269 of Schedule 1 to the TAA 1953 may apply to make company directors personally liable for the following taxation liabilities of the company (in circumstances of non-payment by the company): • PAYG withholding amounts; • superannuation guarantee charges; • net GST liabilities (including luxury car tax and wine equalization tax); and • estimates of the above liabilities. Previously, the Commissioner could only issue a DPN in respect of PAYGW and SGC. However, with the Treasury Laws Amendment (Combating Illegal Phoenixing) Bill 2019 having received Royal Assent on 17 February 2020, the Commissioner now has the power to issue a DPN to recover unpaid GST. Note that the legislation refers to an “assessed net amount” for a tax period, which not only includes the net amount of GST (i.e., GST less input tax credits) but also includes Luxury Car Tax (‘LCT’) and Wine Equalisation Tax (‘WET’). GST instalments are also included. Directors must also be mindful of providing personal guarantees for the company, which reduce the level of asset protection offered by the company, as personal guarantees directly place the directors’ personal assets at risk in the event of the company’s failure. Section 269-15(1) provides that the directors’ obligation commences on the ‘initial day’ for the relevant amount. The ‘initial day’ is: • for PAYGW – the day the company withholds the amount • for SGC – the last day of the relevant quarter (e.g., 31 March, 30 September); or • for estimates – the day the estimate was due and payable (note that this has been changed to (generally) the last day of the period to which the estimate relates, as discussed below). The expanded DPR applies to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020. The estimates regime has also been expanded so that the Commissioner can now make an estimate of a net amount of GST (or LCT or WET) that has not been assessed. An estimate can be made in respect of the tax periods noted above. The directors’ obligation remains in place until such time as the company complies with its obligation (to pay the relevant amount to the Commissioner) or, alternatively, an administrator or a small business restructuring practitioner is appointed, or the company commences to wind-up. If, at the end of the ‘due day’, the directors are still under their obligation to ensure the company pays an amount to the Commissioner (i.e., none of the things mentioned above have happened), then any person who was a director at any time (even for one day) during the period commencing from the ‘initial day’ and ending at the ‘due day’ is liable to pay the Commissioner a penalty equal to the unpaid amount of the company’s liability under its obligation. The penalty is due and payable at the end of the due day. If a person ceased to be a director before the ‘initial day’ for an amount, they will not be liable for a penalty in relation to that amount. However, it is important to note that, if a person becomes a director after the ‘due day’, and none of things referred to above have happened 30 days later, they will be a liable for a penalty. The penalty is due and payable at the end of the 30th day. What if a director resigns during the 30 days period? It is crucial to note that, even if a person is appointed as director after the due day but then ceases to be a director before the 30 day ‘grace period’ is up, they will still become liable for a penalty. Recovery of penalty To recover the penalty, the Commissioner must give a notice (referred to as a ‘Directors Penalty Notice’ or ‘DPN’) to each director setting out the amount of the unpaid liability of the company, as well as the ways the penalty can be remitted. The Commissioner must then wait 21 days before he can commence recovery proceedings. However, the Commissioner cannot take recovery action if a payment arrangement is in place under S.255-15. It is important to note that a DPN is taken to be given at the time the Commissioner leaves it or posts it. That is, the 21 days starts from this time and not from when the director receives the DPN. Remission of penalty A director’s penalty will be remitted if the directors cease to be under their obligation before the end of the 21-day period. This will only be the case where an administrator or a small business restructuring practitioner is appointed, or the company commences to be wound up in that 21-day period. Lock-down penaltiesIn some cases, a director’s penalty is ‘locked down’. This means that, if the company does not notify the Commissioner of the amount of its liability within 3 months after the ‘due day’, there is no course of action that can be taken to cause the penalty to be remitted, i.e., it is ‘locked down’. For example, if the 3 months has passed without notification having been made, appointing an administrator, or commencing to wind-up the company will not cause the penalty to be remitted. Despite the above, there are some limited circumstances in which a director will not be liable for a penalty, as follows: • if, because of illness or for some other good reason, it would be unreasonable to expect the person to take part, and they did not take part, in the management of the company at any time they were a director; • the person took all reasonable steps to ensure the company complied with its obligation, appointed an administrator or a small business restructuring practitioner, or wound up (or there were no reasonable steps they could have taken to ensure any of those things happened); or • in the case of SGC, the company took a position that was reasonably arguable. The onus is on the director to prove the relevant matters for a particular defence. Whilst the facts and circumstances vary for each director, directors arguing a defence before the Courts have typically been unsuccessful in the past. This article is reference to ATO’s Director Penalty Notice and other related articles. This article is for informational purposes only and does not form part of our advice. Please contact our team if you need any assistance. Claire Chang, 0497 131 419, claire.chang@changadvisory.com.au, wechat: clairechang26 Michelle Cui, 0433 539 870, michelle.cui@changadvisory.com.au, wechat: michellejc
ATO 向委托人征收税款的能力 - 董事处罚制度最新更新
on 2021-07-19 03:03:17
by
Claire Chang
Posted in
General
如果个人作为个体经营者或合伙企业的合伙人经营业务，则他们对经营业务过程中产生的债务（以及个人所得税负债）承担个人责任。因此，ATO 不需要特殊的征收权力来让委托人对个体经营者或个人合伙人产生的税务责任承担责任。 类似的结果适用于个人作为开展业务信托的受托人的情况（尽管个人受托人有权从信托资产中获得赔偿）。 另一方面，如果公司（包括作为信托受托人或合伙企业合伙人身份的公司）经营业务，则第 269 条中包含的董事处罚通知（“DPN”）规则1953 年 TAA 附表 1 的规定，可能适用于使公司董事对公司的以下税务责任承担个人责任（在公司不付款的情况下）： • 工资代扣代缴金额； • 退休金保证费用； •商品和服务税净负债（包括豪华车税和葡萄酒均等税）；和 • 上述负债的估计。 此前，税务专员只能就工资代扣代缴和退休金保证费用发布 DPN。但是，随着《2019 年财政部法修正案（打击非法凤凰城）法案》于 2020 年 2 月 17 日获得御准，专员现在有权签发 DPN 以收回未支付的商品及服务税。 请注意，立法指的是一个纳税期的“评估净额”，它不仅包括 GST 的净额（即 GST 减去进项税抵免），还包括豪华车税 ('LCT') 和葡萄酒均衡税（'WET'）。 GST 分期付款也包括在内。 董事还必须注意为公司提供个人担保，这会降低公司提供的资产保护水平，因为如果公司倒闭，个人担保会直接使董事的个人资产面临风险。 第 269-15(1) 条规定，董事的义务是从相关金额的“初始日”开始。 “第一天”是： • 对于工资代扣代缴金额 – 公司代扣代缴金额的日期 • 对于退休金保证费用– 相关季度的最后一天（例如，3 月 31 日、9 月 30 日）；或者 • 对于负债的估计——估算到期和应付的日期（请注意，这已更改为（通常）与估算相关期间的最后一天，如下所述）。 扩充的 DPR 适用于： (a) 2020 年 4 月 1 日或之后开始的纳税期的净额和评估净额；和 (b) 2020 年 4 月 1 日或之后开始的 GST 分期付款季度的 GST 分期付款。 估算制度也得到了扩展，因此税务专员现在可以估算尚未评估的 GST（或 LCT 或 WET）的净额。可以对上述纳税期进行估计。 董事的义务一直有效，直到公司履行其义务（向税务专员支付相关金额），或者指定管理人或小企业重组从业人员，或者公司开始清盘。 如果在“到期日”结束时，董事仍有义务确保公司向税务专员支付一笔款项（即，上述任何事情均未发生），则任何在该公司担任董事的人在从“初始日”开始到“到期日”结束的期间内的任何时间（甚至一天）有责任向专员支付相当于公司在其义务下的未付责任金额的罚款。罚款应在到期日结束时支付。如果某人在“起始日”之前就某个金额不再担任董事，则他们将不承担与该金额相关的罚款。但是，需要注意的是，如果一个人在“到期日”之后成为董事，并且上述事情在 30 天后都没有发生，他们将被处以罚款。罚款应在第 30 天结束时支付。 如果董事在 30 天内辞职怎么办？ 需要注意的是，即使某人在到期日后被任命为董事，但在 30 天“宽限期”结束前停止担任董事，他们仍将承担处罚责任。 追回罚金 要追回罚款，税务专员必须向每位董事发出通知（称为“董事罚款通知”或“DPN”），说明公司未付清的责任金额以及罚款的方式汇出。然后，税务专员必须等待 21 天才能开始追偿程序。但是，如果根据 S.255-15 有付款安排，税务专员不能采取追索行动。重要的是要注意 DPN 被视为在专员离开或发布时提供。也就是说，21 天是从这个时间开始的，而不是从董事收到 DPN 的时间开始。 减免罚款 如果董事在 21 天期限结束前不再履行其义务，则董事罚款将被免除。这仅适用于指定管理人或小企业重组从业人员，或公司在 21 天内开始清盘的情况。 锁定处罚 在某些情况下，董事的处罚是“锁定”的。这意味着，如果公司没有在“到期日”后的 3 个月内将其责任金额通知税务专员，则无法采取任何行动来免除罚款，即'锁定'。例如，如果 3 个月过去了而没有作出通知、任命管理人或开始清盘公司将不会导致罚款被免除。 尽管如此，在某些有限的情况下，董事将不承担罚款，如下所示： • 如果由于生病或其他正当理由，期望该人在其担任董事的任何时候参与，而其他人没有参与公司的管理是不合理的； • 该人采取一切合理措施确保公司遵守其义务，任命管理人或小型企业重组从业人员，或清盘公司（或他们无法采取任何合理措施来确保任何这些事情发生）； 或者 • 就退休金保证费用而言，该公司的立场是合理的。 董事有责任证明特定抗辩的相关事项。 虽然每位董事的事实和情况各不相同，但过去董事在法庭上进行抗辩通常都没有成功。 本文参考了澳洲税务局董事罚款通知以及其他相关的文章。本文仅供参考，不构成我们建议的一部分。 如果您需要任何帮助，请与我们的团队联系。 Claire Chang, 0497 131 419, claire.chang@changadvisory.com.au, wechat: clairechang26 Michelle Cui, 0433 539 870, michelle.cui@changadvisory.com.au, wechat: michellejc
Not-For-Profit Organization
on 2021-06-07 13:34:47
by
Claire Chang
Posted in
General
A not-for-profit (NFP) organisation is an entity that is operating for its purpose and not for the profit or gain (either direct or indirect) of its individual members. NFP organisations fall within two broad categories: • charities, and • other NFP organisations that are not charities, for example: most sporting and recreational clubs, community service organisations, professional and business associations, and social organisations. Charities must register with the Australian Charities and Not-for-profits Commission (ACNC) before they can be endorsed by ATO for tax concessions or apply for certain categories of deductible gift recipient (DGR) status. Other NFP organisations that are not charities may be able to self-assess whether they are income tax exempt or taxable and whether they will have access to other tax concessions. They will need to be endorsed by ATO to obtain DGR status. Legal Structures The legal structure you choose should meet your organisation's needs now and into the future. The organisation's legal structure will affect many things, such as: • its legal identity (whether it can be sued) • its governance structure (who makes what types of decisions) • who is liable for its debts and its specific responsibilities • what its reporting or other compliance obligations are. Legal structures commonly used by NFP organisations include unincorporated associations, incorporated associations, companies, cooperatives, Indigenous corporations, and trusts. Different legal structures have different reporting requirements and tax obligations. Tax Concessions Depending on the type of NFP organisation, different tax concessions are available and the process for accessing each concession varies. Charities: must be endorsed by ATO to access charity tax concessions. Other NFP organisations: can generally self-assess – that is, work out for themselves – whether they are entitled to tax concessions.The tax concessions NFPs may be entitled to access include: • income tax exemption • fringe benefits tax (FBT) exemption or rebate • goods and services tax (GST) concessions • deductible gift recipient (DGR) endorsement • refund of franking credits. To access various concessions and comply with your organisation's tax obligations, your organisation may need to register for an Australian business number (ABN), GST, FBT, pay as you go (PAYG) withholding, fuel tax credits or other taxes. Deductible Gift Recipients (DGR) When you receive donations to support your organization, your supporters can claim a tax deduction if you have been endorsed by ATO as a deductible gift recipient (DGR). All organizations, including charities, must be endorsed by ATO as a DGR if they want their donors to be able to claim a tax deduction. Registration process To register your NFP organization follow these steps: 1. Determine / understand your legal structure. 2. Determine if you are an NFP. 3. Register your organization with the Australian Government to obtain an Australian Business Number (ABN). At the same time, you can also register for Goods and Services Tax (GST), Fringe Benefit Tax (FBT), Pay As You Go (PAYG) withholding if your organization requires it. This article is for informational purposes only and does not form part of our advice. This article is based on Australia Taxation Office guideline. Please contact our team if you need any assistance. Claire Chang, 0497 131 419, claire.chang@changadvisory.com.au, WeChat: clairechang26 Michelle Cui, 0433 539 870, michelle.cui@changadvisory.com.au, WeChat: michellejc