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LAW5230 Taxation Law
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LAW5230 Taxation Law
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Course Code: LAW5230
University: Central Queensland University
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Country: Australia
Question:
In completing your assignment you must distinguish between relevant and irrelevant material and edit the latter from your answer. An answer or an advice to a client which only contains relevant material convinces the marker or client that the author is sufficiently knowledgeable of the subject to be able to exclude irrelevant considerations and material.
Commence work on your assignment, well in advance of the due date. I suggest you read the assignment prior to commencing your study of the course. While you may not have covered all the relevant material to answer all the assignment at that stage an awareness of the issues raised in these assessment items will assist you in focusing your study.
Answer the questions set and only the questions set. Do not introduce irrelevancies or matters which are at best marginally relevant.
Do not paraphrase legislation, use direct quotes if it is critical, otherwise say why it applies.
There will usually be some specific section(s) of the Act relevant to the problem/issue, these should be cited correctly. The same applies to cases and taxation rulings.
Only cite the facts of a case if you wish to distinguish it. If you do not wish to distinguish the case refer to the principle established by the case and put the name of a relevant case in parentheses ( ) after referring to the relevant principle. It may disrupt the flow of your analysis or problem solving exercise to digress into a discussion of the facts of a particular case.
State the specific issue.
Don’t use “Whether the amount is deductible under s8-1”
More specific examples:
“Whether the amount is deductible under s8-1 or a one-off capital payment and therefore non-deductible…”
“Whether the amount is deductible under s25-10 as a repair or whether it is a nondeductible capital improvement”
Answer:
Introduction:
The small business sector of Australia has regularly pursued the challenging requirements equity, simplicity and efficiency under the income tax regime by especially placing focus on the concept of simplicity (Sadiq et al. 2014). Over the last decade, numerous attempts has been made to offer the small business in Australian with simplicity and reduce burden of tax compliance with the help of simplified system of taxation. Nevertheless, in spite of making several amendments over the last decade, the simplified tax system has been widely criticized by the tax practitioners.
The small business forms the significant part of Australian economy. The small business of Australia is approximately valued at $1.5 trillion. In a report published by Australian Bureau of Statistics these small business with less than $2 million turnover per annum makes up around 97% of the business in Australia. The small business is often termed as the engine for the Australian economy (Coleman et al. 2014). The small business are particularly unable to attain the economies of large scale benefits from their greater counterparts. With growing importance of small business, the government has regularly made an attempt of reducing the tax compliance cost. Eventually, with very low acceptance rate and widespread criticism, led the modernized and rebadged systems for concessions known as SBE regime.
According to the board of taxation a well-made tax concessionary regime and subsidisations is aimed at assisting the small business that are faced with specific challenges. The small business concession can play a vital role in assisting the small businesses at every phase of their business lifespan (Lignier and Evans 2013). This ranges from important start up face to maturity and retirement of business owners. The present literature would outline the small business CGT concession in Australia and would critically assess the CGT concession for small business together with the overall objectives of policy. The study would also assess whether the concessionary regime meets the policy objectives accompanied with further essential recommendations to the scheme.
The small business CGT concession:
Any small business entity that satisfies the basic criteria that is outlined under the “section 152 of the ITAA 1997” is entitled to a wide variety of CGT concessions that are stated under the “subdivision 152Bto 152E”. The vital impact of the concessions provided to small business includes that the capital gains that originates on making the active asset sale can be lowered by 50% and 100% (Geljic, Koustas and Burke 2016). Nevertheless, different from the other five concessions that are available to small business, the taxpayers of small business entity hardly elects to implement these requirements. Given that a small business unit fulfils the basic conditions, the entity obtains the CGT relief. As a result of this, the tax consultants would often use provision of small business CGT concessions that are provided under the “Division 152 of the ITAA 1997” when the clients of small business makes the sale of active asset.
By implementing the specific provisions of concessions, the tax consultants are able to lower tax liability of capital gains originating from the sale of their customer’s business to $Nil (Tucker 2016). As evident the only chief roles of the tax consultants are to reduce the taxpayer’s affairs of reduced tax liability however the small business CGT concessions is regarded as one of the method through which the tax practitioners can significantly obtain the concession for the small business entity.
According to Sadiq and Marsden (2014) the small business CGT concessions is regarded as one of most difficult provision under the ITAA. While the taxpayers are eager to implement the small business CGT concessions but some taxpayers have cited that the provision is not easy to implement and often consumes time to navigate through which ultimately adds up the tax compliance costs. There were comments that the CGT concessions is definitely popular method but involves extensive amount of effort. As stated by Yuan (2017) a business can incur a cost that would range between $5000 and $10,000 for their company to ascertain whether the business qualifies for the concessions under the small business CGT regime.
In spite of the difficulty and higher inherent costs related with the use of small business CGT concessions, taxpayers view the tax concession regime as the highly appreciated concession. This can be described through the sheer size of tax minimization benefit which can be obtained through using the small business CGT concession (Evans et al. 2014). Empirical evidences has suggested that the small business concessions stated under Division 152 is highly complex and eventually results in noteworthy cost of compliance for the taxpayers. In contrary, the tax consultant’s comments appeared opposite. The tax expert viewed the CGT concession as the benefit that possibly flow in the direction of the taxpayers and by implementing this tax concession regime they can outweigh the cost compliance costs.
Existing literature has noticed that the CGT concession for small business disrupts the principle of simplicity. According to Sanderson (2015) the taxpayers are more often forced to spend a substantial amount of time in determining whether their business satisfy the basic conditions and are henceforth entitled to one or more CGT concessions. This kind of difficulty existent in the eligibility rule leads the client to face increase sum of accounting fees because of the time that is spend by the tax agent in assessing each concession and ascertaining which concessions fits well to the business.
As a consequence of this, it is probable where the practitioners believe that the obtainability of the discount is marginal with taxpayers might be advised that the expenses that are incurred in researching the obtainability of the tax concession and implementing the same might be very high to justify (Festa 2018). This represents that the inherent cost that are related with the tax concessions complexity, few eligible business may not be able to use those regimes of tax concession as they are unable to afford the risk of shouldering the costs without any benefits related to it. Therefore, the regimes of tax concessions violates the tax principle of equity. On a conclusive note, the small business CGT concessions is viewed as a tool of greater benefit however the difficulty in eligibility rules is very restricting and expensive, perhaps require a direct far-reaching evaluation.
Overall policy objective under present system of taxation:
The tax concessions for the taxpayers of small business forms an important element of the present system of Australian taxation system. There are numerous policy objectives that underpins the tax concession (Chung 2016). Certain policies are aimed at reducing the burden of compliance while other policies are aimed at offering greater tax relief to promote the access to business success. While other policies are aimed at promoting wider access to obtain fund for their retirement and with concessions that are created to meet the combination of the above stated objectives.
The lower company tax rate concession was introduced during 2015-16 to reduce the rate of company tax to 28.5 for business that have an annual aggregated turnover of lower than $2 million. In the following year 2015-17 the rate of company tax rate was further lowered to 27.5% for business that have the annual turnover of lower than $10 million (Hicks and Tran 2014). Capital gains tax concession is another policy where the owners of the net assets of not greater than $6 million or yearly sales turnover of lower than $2 million are eligible for a small business CGT concession on the small business active assets which is held constantly for a period of 15 years or where the taxpayers attains the age of 55 and retires.
The small business CGT concession provide 50% reduction of the capital gains that originates from the sale of active small business assets together with the general CGT discount. The policy provides the small business with the exemption till the lifetime cap of $500,000 on the capital gains originating from the sale of active small business assets and where the sale proceeds of the assets are used to fund the retirement (Jones 2018). The current policy provides the small business with the CGT rollover relief for the capital gains originating upon the sale of the small business active assets given the sales proceeds are employed in the purchase of active small business assets.
The present policy provides the small business with the instant asset writing off under the simplified depreciation rules. The small business entities that have the aggregate turnover of lower than $10 million is able to obtain the access of concessional depreciation arrangement for its business assets. Under such concessions the business entities are allowed to immediately claim deductions for those assets that costs lower than the threshold limit (Somers and Eynaud 2015). Policies such as restructure rollover relief provides the small business owners of active assets with the CGT and income tax rollover relief relating to genuine business restructure based on the conditions that the economic ownership of the assets is unchanged. The rollover is available for the business that have the aggregate turnover of lower than $10 million.
The present policy objective provides the small business with simplified rules of trading stock. Small businesses that have the aggregated yearly sales turnover of lower than $10 million might choose to use the simplified trading stock regimes (Trad and Freudenberg 2018). Under this regimes, the small business can select not to account for the changes in the stock values for the income year ended given the difference between the opening value of the stock in hand and the estimated stock in hand at the end of the year would not go past $5000. The policy objective conclusively delivers that the tax system also arranges for favourable outcomes to the segment of small business by making it easy to attract the attention of investors.
Critical evaluation of SBE concession:
The traditional tax policy needs a tax regime so that it can fulfil certain number of diverse and frequently conflicting criteria to be measured as the good tax policy. The principles of equity, convenience, certainty and economy is often viewed as the old-style standards where different government and regulatory units usually undertake these criteria in some form while applying the new provision of tax regimes along with the overall assessment of the tax concessions regimes (Kenny and Blissenden 2014). When the tool of simplified tax system was released during 2001, the ultimate objective was to enhance the principles of simplicity and transparency by lowering the cost of tax compliance for the small business. While other concessionary packages for the small business, namely the CGT and the GST were regarded as dependable with this objective.
In contrary to the statement made by the federal government, the literature that evaluates the concession of small business bring forward the argument they fail to satisfy the criteria of good policy of taxation. In the words of Ma (2015) the claims for argument is based on the possible increase in complexity and cost of compliance inside the regime. For instance, with respect to the first claim of improved simplicity, it is explained that the decision of entering into the concessionary regimes raises the complexity that requires an in depth personalized assessment, thus adding up to the layers of current burdensome rule. The assessment was viewed as time consuming and possibly expensive, depending upon the circumstances of whether any professional advice is sought. The perplexing explanation of the admissibility criteria is evidenced by the requirement of ATO interpretation in the following ruling of taxation compounded the subject.
The reduced cost of compliance is another benefit of the tax concession regime that has of late come under the inspection. The institution of simplified taxation system was viewed in 2001 as the thoughtful attempt made by the federal government to address the issue growing cost of tax compliance which was faced by the small business and also offered certain opportunities of respite.
There are certain scholars that goes to the extent of assessing the perceptions of tax concession. Similar to the above discussed issue of tax compliance costs, it is truly evident the small business faces the costs of complying with the numerous taxation laws and regulations. Studies by Barros, Teo and Hinchliffe (2016) reveal that the costs of tax compliance are highly regarded as the regressive in character, which means that small business shoulder a greater uneven share of tax compliance costs in comparison to other large companies. Evidence by Simpson (2015) suggest that tax compliance costs that is faced by the small business of Australia with an annual turnover of $100,000 per year was probably 25 times greater than per $1,000 of turnover in comparison to the tax compliance cost of companies that have an annual turnover of $10 million.
Trad and Freudenberg (2017) found that there is difference in cost of compliance between the small, medium and large corporations in Australia was substantial with big business have negative cost of compliance following the offset of accounting tax. On the other hand medium business incurred cost of compliance around 0.01% of their entire turnover while the small business had the compliance cost of approximately 2.5% of the whole turnover. In perspective of the Freudenberg et al. (2017) the taxpayer’s viewpoint on cost of compliance had turn out to be poorer. The researchers furthers provides a conclusion that the taxpayers were not informed or failed to understand the concessions that ultimately contributed to their perception of complexity towards tax concession.
Reformations and further amendments of CGT Concessions:
According to Butler and James (2016) the well-made tax concession regimes and subsidies are in the direction of helping the small business with the challenges faced by them. The small business in Australia is presently struggling with fundamental changes to the traditional method of doing business. The pressure is mounting for the businesses to go digital and the way in which they comply with the obligations related to taxation and other regulations.
Designing the system of taxa for the small business sector offer a substantial challenge in striking a balance between the board and the competing principles of simplicity, equality and efficiency. Ultimately the purpose of the reformation is to strive for a system of taxation that better permits the business owners in getting on with doing the business (Campbell 2015). This represents that the system of taxation should be responsive to the unique challenges that is faced by the small business by considering their requirements and needs. The current amendments involves reformation of principles to assess the present and future regimes of tax concessions for the small business by identifying the opportunities for enhancement.
Reformations can be made by “designing the concession with regard to small business lifecycle”. Small business usually moves through the successive stages begging from start up to period of growth, maturity and ultimately to the exit stages when the proprietors would either sell the business or wind up the operations. Accordingly, the principle of business lifecycle offers a valuable benchmark to assess the present regimes of tax concessions and by recognizing the opportunities for enhancement (Trad and Freudenberg 2018). Having a content package of concession would provide the small business with meaningful assistance through the course of business lifecycle.
Reformations in the “tax concession should be made to help cash flow for small business”. Cash flow is regarded as the important concern for several small business, particularly when the business is in the critical phase of life cycle. Small business often faces the challenge of managing the cash flow and regularly reflects the insufficient literacy or restricted access to relevant tools or expertise (Barros, Teo and Hinchliffe 2016). There are scope to complement the present regimes of concession through specific relief that is designed to offer targeted amount of cash flow help in under particular temporary situations.
The concession should be such that it “relieve the burden of compliance for the small business”. The tax system of Australia is difficult and burdens the small business with higher cost of compliance. As evident, the cost involved in complying with the tax obligations is not simply measured in dollars (Freudenberg et al. 2017). Small business owners may suffer substantial amount of non-financial costs out of stress and loss of time. Therefore, easing the cost of compliance burden for the small business is primary step in the process of designing the tax concession.
The most vital objective of the tax system is to make sure that the business that wish to expand and innovate are encouraged to do so. Amendments to the present regimes of “tax concession should be made to stimulate growth and innovation”. The system of taxation should be designed in such a manner that it eliminates the disincentives for making investment in both the physical capital and technological innovation (Hicks and Tran 2014). It must reflect the vitality of human capital by assisting the new business in taking up the employees and business that are established to expand their workforce.
The tax concession should be designed in such a manner that it aims in reducing the incentive for complex structuring. It is recommended that revenue produced through better targeting concessions should be redeployed in a manner that would offer more meaningful assistance to small business. This would also make sure that the measures does not increases the complexity or distortions that not consistent with the wider policy objectives.
Conclusion:
The literature draws a conclusive evidence that there are several elements to consider while restructuring the business ownerships. The study after considering all the factors states that restructuring of CGT concession for small is currently the best outcome. The findings from the research suggest that tax concession for small business entity is worthwhile. In contrary to the initial policy objective of the regulation, the reason for adopting the small business concession was to offer the opportunity of reducing the taxpayer’s liability to tax.
The tax concession for small business entity has failed to attain the principles of simplicity and didn’t do anything to simplify the system of taxation for the small business. The SBE concession even failed to reduce the tax compliance cost for the taxpayers. Empirical findings has suggest that tax concession for small business has failed to achieve the desired result and have increased the cost of tax compliance for small business entity. The current policy objectives for small business concession requires reformations to attain their primary objectives.
References:
Barkoczy, S. 2014. Foundations of taxation law.
Barros, C., Teo, E.J. and Hinchliffe, S., 2016. Clash of the deeming provisions: Pre-CGT concessions, tax consolidation and policy in the federal court. Austl. Tax F., 31, p.509.
Butler, D. and James, R., 2016. Superannuation: New $500,000 lifetime cap is bad law. Taxation in Australia, 50(11), p.683.
Campbell, S., 2015. A mater of trusts: CGT issues when creating and dealing with UPEs. Taxation in Australia, 50(6), p.332.
Chung, E., 2016. Tax tips on selling your real estate agency business. REIQ Journal, (Feb 2016), p.34.
Coleman, C., Hart, G., Bondfield, B., McLaren, J., Sadiq, K. and Ting, A., 2014. Australian Tax Analysis. Thomson Reuters.
Evans, C., Hansford, A., Hasseldine, J., Lignier, P., Smulders, S. and Vaillancourt, F., 2014. Small business and tax compliance costs: A cross-country study of managerial benefits and tax concessions. eJournal of Tax Research, 12(2), p.453.
Festa, D., 2018. CGT amendments: Unnecessary complications for small business. Taxation in Australia, 53(1), p.18.
Freudenberg, B., Chardon, T., Brimble, M. and Belle Isle, M., 2017. Tax literacy of Australian small businesses.
Geljic, S., Koustas, H. and Burke, D., 2016. Small business restructure roll-over. Taxation in Australia, 50(7), p.404.
Grange, J., Jover-Ledesma, G. and Maydew, G. 2014. principles of business taxation.
Hart, G., Coleman, C., Jogarajan, S., Sadiq, K., McLaren, J. and Krever, R., 2015. Principles of taxation law.
Hicks, A. and Tran, A., 2014. Small business concessions. Taxation in Australia, 48(7), p.367.
Jones, D., 2018. Market value spotlight on miley. Taxation in Australia, 52(7), p.367.
Jover-Ledesma, G. 2014. Principles of business taxation 2015. [Place of publication not identified]: Cch Incorporated.
Kenny, P. 2013. Australian tax 2013. Chatswood, N.S.W.: LexisNexis Butterworths.
Kenny, P. and Blissenden, M., 2014. The $6 million net asset value test for small business. Australian Tax Law Bulletin, 1(3), pp.58-63.
Krever, R. 2013. Australian taxation law cases 2013. Pyrmont, N.S.W.: Thomson Reuters.
Lignier, P. and Evans, C., 2013. The rise and rise of tax compliance costs for the small business sector in Australia.
Ma, D., 2015. Small business tax compliance burden: what can be done to level the playing field.
Morgan, A., Mortimer, C. and Pinto, D. 2013. A practical introduction to Australian taxation law. North Ryde [N.S.W.]: CCH Australia.
Sadiq, K. 2014. Principles of taxation law.
Sadiq, K. and Marsden, S., 2014. The small business CGT concessions: Evidence from the perspective of the tax practitioner. Revenue Law Journal, 24(1), p.1.
Sadiq, K., Coleman, C., Hanegbi, R., Hart, G., Jogarajan, S., Krever, R., McLaren, J., Obst, W. and Ting, A., 2014. Principles of taxation law 2014. Thomson Reuters.
Sanderson, J., 2015. CGT small business concessions and superannuation. SMSF Guide: Current Issues and Strategies for the Self-Managed Superannuation Funds Adviser, p.183.
Simpson, L., 2015. Valuations for taxation: Practical implications of the IGT review. Taxation in Australia, 49(10), p.613.
Somers, R. and Eynaud, A., 2015. A matter of trusts: The ATO’s proposed treatment of unpaid present entitlements: Part 2. Taxation in Australia, 50(3), p.147.
Trad, B. and Freudenberg, B., 2017. All Things Being Equal: Small Business Structure Choice. J. Australasian Tax Tchrs. Ass’n, 12, p.136.
Trad, B. and Freudenberg, B., 2018. A Dual Income Tax System for Australian Small Business: The Experts’ Verdict.
Tucker, J., 2016. Draft legislation to enhance flexibility for small business to restructure. Bulletin (Law Society of South Australia), 38(1), p.28.
Woellner, R. 2013. Australian taxation law select. North Ryde, N.S.W.: CCH Australia.
Yuan, H., 2017. Review of structures for SMEs. Taxation in Australia, 52(6), p.302.
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