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‘Mammoth consequences’: ATO’s NALI ruling draws ire from accountants

 

The recent ruling on non-arm’s length income (NALI) in super funds by the ATO will have far-reaching consequences for the superannuation sector, according to industry experts.

 

       

First issued as a draft in September 2019, the finalised Law Companion Ruling 2021/2 issued on Wednesday, which clarifies the ATO's interpretation of amendments to NALI rules relating to non-arm’s length expenditure (NALE).

The Institute of Public Accountants, The Tax Institute and Chartered Accountants Australia and New Zealand have now joined together to call for the ruling to be narrowed to the law’s original intent.

“At the same time as the whole super sector has been helping Australians navigate their retirement like never before, they’ve been waiting with bated breath for the finalisation of this ruling which seems to demand perfection,” said the joint bodies.

“The ruling forces all super funds to carefully consider if all losses, outgoings and expenditures have occurred on arm’s length terms. 

“It is concerning that if finance teams, accountants or advisers get any transaction wrong in any super fund including APRA regulated funds, that fund could pay the highest marginal tax rate at 45 per cent on all its income including realised capital gains.

“There are mammoth consequences for minor errors which means that solutions need to be worked through very carefully, requiring considerable time and expertise. Because of this potential outcome all super funds need more certainty about how they go about their business.”

The joint bodies note that the LCR 2021/2 ruling applies to a much broader range of circumstances and has much greater impact than what the super industry had understood the original government announcement was targeted at.

“The ruling which has opted to show the broad application of these non-arm’s length rules even to relatively benign situations and the ATO has clearly indicated that it intends to apply a broad interpretation to these rules.

“The ATO has provided multiple opportunities for professional bodies and the industry to comment on these rulings throughout its development and we look forward to continuing this collaboration with the ATO to investigate how this ruling will apply in practice.

“We will also work with the government to request that these rules be narrowed so that benign or minor expenses cannot create such a disproportionate outcome to a super funds’ tax affairs and in turn severely deplete retirement of Australians.”

Increased risks and litigation impacts     

With the confirmation of the ruling, DBA Lawyers director Daniel Butler said the ATO has taken a pro-revenue construction of legislation that results in numerous far-reaching and severe consequences.

“The construction that a ‘general expense’ taints all of a fund’s entire income, both ordinary income and statutory income, is the preferred construction posited by the ATO,” Mr Butler said. The ATO does not acknowledge the preferred construction put forward by numerous professional bodies.

“This was not expected by many in the SMSF industry and has caused great concern in the SMSF sector that the ATO may seek to assess many mum and dad SMSFs doing typical dealings.

“Numerous professional bodies submitted that a general expense such as a lower accounting fee has little, if any, nexus to income derived; any connection at best could be described as tenuous and remote.

“The good news is that the ATO will not dedicate its compliance resources if there are reasonable attempts to benchmark an arm’s length service fee being charged.”

Mr Butler said it would remain to be seen how the courts would react to the ruling if such matters proceed to litigation.

“What view would a court cast on say a $100 discount resulting in a 45 per cent tax on an average mum and dad SMSF of $1.3 million with a diversified investment portfolio on the basis that the ATO argue that a $100 discount on an accounting fee has a sufficient connection to every share, managed fund, deposit, interest in real property (direct and indirect) and the fund’s other investments, etc,” Mr Butler explained.

“One would hope that a judge would see the absurd and severe consequences that can result from this construction and construe the NALE provisions in a balanced manner. The rules of statutory construction where tax is being levied must be clear and should be construed accordingly where absurd and unintended consequences arise. That is not to say the ATO are not without an argument, but is it the preferred construction that would hold sway in a court of law?

“Importantly, the ATO is not a law maker and the ruling is light on in relation to providing appropriate reason or authority to support the ATO’s views.

“Despite the ruling not being the law, given taxpayers wear the onus of proof, the ATO view generally prevails as not many taxpayers are prepared to ventilate technical points of law with the ATO that has vast resources at its disposal.”

There is also the risk that some ATO officers may seek to apply NALI inappropriately and give rise to substantial costs to defend unfounded NALI claims, according to Mr Butler.

“There is no formal early engagement and voluntary disclosure for NALI as there is for contraventions of the Superannuation Industry (Supervision) Act 1993 (Cth),” Mr Butler continued.

“Such a system is needed as SMSFs are often afraid to approach the ATO given its recent stance on NALI matters. The ATO should encourage funds to come forward and due to reduced penalties and more flexible approach for engaging with the ATO.”

Conflicting and complex applications 

While the ATO has sought to clarify certain points such as whether a person is acting as in an SMSF trustee/director capacity or in their own individual capacity, the ruling has come as a disappointment to many in the superannuation industry.

Heffron managing director Meg Heffron said whilst the ATO has consulted widely, “it has ended up in a place that won’t please a lot of us on every front.”

Ms Heffron noted that the ruling explicitly distinguishes between this type of “once-off NALE” and a similar problem where the expense relates to the purchase of an asset.

“Unfortunately, there is a permanent problem for NALE under these circumstances. The ruling even provides an explicit example where an LRBA is entered into on non-arm’s length terms. Even refinancing and moving to arm’s length terms doesn’t help – all income and capital gains, now and forever, will be NALI,” Ms Heffron said.

“That’s rough. It means there is actually no solution for LRBAs that aren’t set up on a solid market basis.”

Ms Heffron noted that whilst the ATO had softened its original stance on the application of NALI to professionals such as accountants doing work for their own SMSFs using company equipment, there were still plenty of questions to answer in regard to this subject.

“The importance of relying on a licence or insurance – it would seem that (for example) it’s fine for a qualified accountant to do their SMSF’s bookwork on their work computer and using their expertise gained via their work. But if they also lodged their tax return under their firm’s corporate tax agency, that is likely to create a problem,” Ms Heffron said.

“A similar issue would appear to arise for financial advisers. An example provided in the ruling (Example 7, Levi) makes it clear that it’s fine for Levi to place investments for his SMSF (even using his work computer). But we’re unclear as to how far that stretches. If Levi’s SMSF is invested via the same platform as all Levi’s other clients, can he manage it under the same dealer code?

“And finally, the ruling does acknowledge the commercial reality of things like staff discounts. It provides examples about situations where (say) accounting fees for work on SMSFs of the staff who work at the firm can be discounted without automatically creating NALE.

“A key feature of the examples provided, however, is that the trustee/member is not in a position to influence the discount. How far does this go? Could we be in the bizarre situation where I can offer all Heffron staff a discount on their SMSF work but can’t receive one myself because I can influence the decision? It’s not clear.”

 

 

Tony Zhang
29 July 2021
smsfadviser.com

 

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Modern business demands up to date accurate financial information.

We can take care of all your bookkeeping and accounting needs, including the preparation of your annual accounts and periodic management accounts for tax, business appraisal and planning purposes.

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We will discuss your requirements with you and provide you with tailored information and constructive advice on a regular basis.

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Whether you are considering buying or selling a business, we are able to assist you in this transaction by providing experienced advice.

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In addition to goal setting value, budgets will often improve your chances of acquiring funding. Financers often require budgets as a prerequisite for funding approval.

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Business Start-Ups

Before commencing a new business, the following are some of the key items that need to be considered:

  • Decide on the most suitable structure for your business – sole trader, partnership, trust or company
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Each new business is different and needs to be considered in relation to your individual circumstances and our experience can ensure you are maximising your opportunities.

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Each type of charitable institution brings with it different requirements and benefits. We know the practicalities of these institutions and are able to assist you by:

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Company legislation requires businesses to perform many administration tasks which take up a lot of valuable company time.

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GST

Every transaction has GST implications. We have experience with these issues and are able to offer expert advice on the implications of GST for your business. The GST related services we offer include:

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Management Consulting

We are practiced in acting as a sounding board for management, bringing to the relationship years of experience in business growth and analysis.

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We can provide a comprehensive and confidential payroll service including:

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We can assist in a variety of areas in relation to residential and commercial property including:

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Clients of Wybenga Partners can engage our partner firm, Washington Brown, for a competitive price on their depreciation services: Tax Depreciation Quote Request – Wybenga & Partners Clients

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Our Strategic Planning Service is designed to assist our clients to develop financially towards the achievement of their lifetime objectives. Our experience and proven results provide our clients with the security that their financial goals will be met.

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Self-managed superannuation is a flexible means of saving for retirement. It allows you to take control of your superannuation, adopt a customized investment strategy and control fund administration costs.

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We offer a complete range of taxation services and advice based on proven knowledge and experience. Our proactive approach ensures we deliver a consistent service and build solid relationships.

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A trust provides a valuable way of protecting the assets you have accumulated for the benefit of yourself and others.  A trust can also be an effective structure for running your business.

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Wybenga & Partners are able to organise for the preparation and execution of documentation involved in Trust formation.

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Secure File Transfer is a facility that allows the safe and secure exchange of confidential files or documents between you and us.

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General Calculators

Please enjoy the links to these free tools supplied by MoneySmart – a great resource for general financial information. Please get in touch if you would like to discuss any questions that you may have as a result of using these calculators.

Accounting Videos

 

Chris Wybenga

B.Bus, CA

Chris is the Managing Director of the Firm who established the practice in August 1994 and has been responsible for its growth and development since that time.

Chris has over 35-years experience in the Chartered Accountancy profession, predominantly spent in small to medium sized firms, advising both small business and individuals in areas such as taxation and accounting as well as business restructuring and superannuation advice.

Chris is active in the development of young accountants both in mentoring cadets at the Firm and lecturing in taxation for the CA Program for the Institute of Chartered Accountants.

  • 1980 – Commenced employment and part time university studies
  • 1985 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1986 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 1988 – Registered as a Registered Company Auditor
  • 1994 – Established Wybenga & Partners (formerly known as Farrar & Wybenga)

Dianne Bechara

B.Bus, CA

Dianne is responsible for the day-to-day operations and administration of the practice.

Dianne has over 25-years Chartered Accountancy experience and has significant expertise in providing advice and solutions to high-net-worth individuals and their associated entities. Dianne also has considerable knowledge in the areas of taxation, business services, superannuation, and compliance.

Dianne is active in promoting gender equality in the industry through various programs and mentoring opportunities. Dianne is also committed to the development of young accountants and donates considerable time to sharing her expertise.

  • 1992 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1993 – Commenced employment in acounting profession
  • 1996 – Commenced career with Wybenga & Partners
  • 1997 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 2002 – Appointed as Director of Wybenga & Partners

Roger Potter

B.Bus, CA

Roger is responsible for the HR aspect of the Firm, cultivating the culture, and maintaining the highly social environment we pride ourselves on.

Roger has over 30-years in the Chartered Accountancy profession and significant expertise in providing advice and solutions to small businesses and high-net-worth individuals. He also has extensive experience in the areas of Self-Managed Superannuation Funds and retirement strategies.

Roger is active in the development of young accountants both in mentoring cadets at the firm and lecturing in taxation for the CA Program for the Institute of Chartered Accountants.

  • 1985 – Commenced employment and part time university studies
  • 1990 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1992 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 1998 – Commenced career with Wybenga & Partners
  • 2002 – Appointed as Director of Wybenga & Partners

Tess Uncle

B.Sc, M.Com, CA

Tess has over 15-years experience in Chartered Firms and in this time has had a broad range of experience in superannuation, taxation, and business services. In particular, Tess has had significant experience in MYOB and assisting clients in day-to-day bookkeeping activities and periodic reporting.

Tess is responsible for the Firm’s training and development needs.

Tess is active in promoting gender equality in the industry through various programs and mentoring opportunities. Tess is also committed to the development of young accountants and donates considerable time to sharing her expertise.

  • 2001 – Commenced employment with Wybenga & Partners and part-time accountancy studies
  • 2004 – Graduated Masters of Commerce from the University of New South Wales
  • 2005 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 2007 – Promoted to Manager at Wybenga & Partners
  • 2012 – Appointed as Associate Director
  • 2016 – Appointed as Director of Wybenga & Partners

Adam Roberts

B.Bus, B.Sc, CA

Adam has over 13-years experience in Chartered Firms and in this time has had a broad range of experience in superannuation, taxation, and business services. In particular, Adam has had significant experience in MYOB and assisting clients with periodic management reporting.

Adam is responsible for the implementation of technology in the Firm and sourcing new areas of innovation and efficiency.

Adam is active in the development of young accountants and donates considerable time to sharing his expertise.

  • 2005 – Commenced employment with Wybenga & Partners and part-time Accountancy Studies
  • 2005 – Graduated Bachelor of Science from the University of Western Sydney
  • 2007 – Graduated Bachelor of Business from the University of Western Sydney
  • 2010 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 2010 – Promoted to Manager at Wybenga & Partners
  • 2012 – Appointed as Associate Director
  • 2016 – Appointed as Director of Wybenga & Partners

Accounting Cadetships

Each year we offer several school leavers or undergraduates the opportunity of beginning their career with us via an Accounting Cadetship. If you are interested in pursuing a career in accounting please read the information below.

What is an Accounting Cadetship?
An Accounting Cadetship enables you to commence your career whilst attaining the necessary university qualifications by studying part-time.

How does it work?
Generally, our cadets complete a Bachelor of Commerce (BCom) or Bachelor of Business (BBus) degree at the University of New South Wales, the University of Technology Sydney, Macquarie University, or the University of Western Sydney.

The firm provides 3 hours paid study leave per week to attend University. This can either be taken at the one time or broken between days depending on the individual’s requirements. In addition, the Firm provides paid study leave for both mid-semester and end-of-year exams.

We take the work life balance very seriously at Wybenga & Partners and our cadets are encouraged to have a fulfilling life outside the office. A typical day will have you arriving at the office at around 8.30am with most days concluding at 5.30pm.

What are the benefits of an Accounting Cadetship with Wybenga & Partners?
Our cadets benefit from the following:

  • Career path – on completion of their degree our cadets have significant practical experience which will assist them in advancing their careers
  • Work helps your studies – by working full-time our cadets are able to apply their practical knowledge in the university subjects
  • Camaraderie with other cadets – the Firm has a number of cadets at various stages of their career
  • Mentoring – cadets are paired with a senior staff member who oversees their progress and training both at work and with their studies
  • Communication and feedback – the Firm has an open door policy which enables all cadets to interact with all members of staff including Directors
  • Culture – the Firm promotes a friendly social culture with a number of functions throughout the year
  • Modern environment – including ‘socialising’ areas such as pool table and break out area
  • Training – ongoing support and technical training. We also provide internal and external training on a monthly basis
  • Remuneration – working full-time provides a market salary and independence with salaries being reviewed every 6-months

What happens when I complete my degree?
The completion of your degree is the first step of what we hope to be a long and successful career with us. The next step is the commencement of your CA Program with the Institute of Chartered Accountants Australia and New Zealand whilst at the same time continuing your employment with us.

A number of cadets have progressed to Seniors, Managers, and Directors within the firm.

Who should apply?
Current Year 12 students or first/second year University Students who:

  • want to commence their career in accountancy;
  • are due to commence or are currently completing a part-time business or commerce degree at university with an accounting major;
  • want to gain valuable hands-on experience while completing their qualifications;
  • are looking for a friendly working environment;
  • are team players who display initiative;
  • have a commitment to self-development;
  • possess excellent personal presentation and communication skills; and
  • are motivated and mature minded.

How do I apply for an Accounting Cadetship?
To apply for a Cadetship position at Wybenga & Partners send us your details. Please also include in your covering letter why you wish to do a cadetship, include relevant qualities you possess, main interests / achievements, and any previous employment.

Interested candidates should initially forward a resume/covering letter of no more than 3-pages. Please provide full details of contact information (telephone or e-mail).

What if I have more questions?
For further information about our Cadetship program, please send your enquiry to info@wybengagroup.com.au

Skilled Accountants

Wybenga & Partners offers a stimulating work environment giving you the opportunity to develop your future success.

Wybenga & Partners recognises and promotes that there is more to life than work. We know that your needs change and we provide support to balance your work, academic and lifestyle pursuits.

We welcome enquires from trained accountants regarding a career with Wybenga & Partners. Please email us your details to info@wybengagroup.com.au