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Annual Tax Forum

Published on 27 May 2008 | Took place at The Westin, Sydney, NSW

This event had three streams providing over 40 technical sessions presented by Australia’s leading tax experts. Tax law changes continue to provide us with complex issues and challenges to deal with on a daily basis. This flexible program allowed delegates to choose the topics that best fitted their needs whether they worked as an in-house professional or in public practice.

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Individual sessions

Division 7A update - 30 June 2008 is “drop dead date”

Author(s):  Gil LEVY

This paper covers crucial update for SMEs. Recent developments concerning Division 7A and matters to be addressed before the end of the 2008 financial year, including:

  • how recent amendments have changed the Division 7A landscape
  • opportunities to take to your clients, what can you do in 2008?
  • common traps and bug bears
  • structures to best manage exposure to Division 7A.
Materials from this session:

Exploring superannuation

Author(s):  Mark WILKINSON

Superannuation has continued to develop over the last 12 months, with the ATO and APRA playing an active role in continuing to define the roles of accountants, auditors and trustees. In addition, new opportunities in the areas of investments (with funds being able to borrow) and estate planning have continued to emerge. This presentation outlines those opportunities and the issues that need to be taken into account in properly advising clients and:

  • reviews key ATO interpretative decisions, cases and rulings affecting superannuation funds
  • reviews the opportunities arising from the fact that funds can now borrow, and examine some of the opportunities and traps
  • examines other aspects for the investment rules with particular emphasis on the in-house asset rules.
Materials from this session:

Effective trust distributions: get them right

Author(s):  Neil WICKENDEN

Recent case decisions have highlighted pitfalls in trustee distribution resolutions. They have also introduced uncertainty into the meaning of the term "income" in the context of trust distributions. Further, the ATO's published guidelines on trust distributions require careful consideration when making trustee resolutions. This paper examines:

  • the review of trust deeds: what should be checked to ensure that trust distribution resolutions are correct?
  • present entitlement: why is this vital when preparing trust distribution resolutions?
  • meaning of the term "income": how do current views of the meaning of "income" affect trustee resolutions?
  • practical distribution resolutions: for practical purposes, how should distribution resolutions be drafted?
Materials from this session:

Your trust is misplaced

Author(s):  Andrew Noolan

As well as making sure that your trust distributions are taxed to the appropriate beneficiaries there are a number of other matters that trustees and their advisors need to be mindful of when administering a trust. This paper considers a number of issues including:

  • the emerging trend of the ATO using the reimbursement agreement provisions to invalidate a distribution
  • the trust loss measures and how they should be viewed now that family trust elections can be made retrospectively
  • where we are now given the announced changes to the family trust election regime
  • the ATO's recent pronouncements on the cloning of trusts.
Materials from this session:

GST hot topics & recent developments

Author(s):  Andre SPNOVIC

The GST system continues to develop and mature with a number of important cases and rulings continuing to emerge on a regular basis. This paper examines and explores some of the key developments that have taken place over the past 12 months including:

  • reliance Carpets and the treatment of security deposits
  • the approach of the Courts and AAT to the imposition of penalties for nonpayment/underpayment of GST
  • mixed and composite supplies - when is something really "free"?
  • the application of GST to charities and not-for-profits
  • trusts and bare trusts as separate taxpaying entities
  • real property - continuing to create real issues especially for residential property developers.
Materials from this session:

Company losses – recoverable or lost?

Author(s):  Peter FOGALE

Although extremely valuable to emerging companies in particular, the complexities involved in testing the ability to utilise losses are often underestimated. This paper looks at the current rules affecting the recoupment of losses for companies, particularly in light of the 2005 changes and their subsequent amendment. Topics covered include:

  • brief history of the loss recoupment rules
  • structure of loss recoupment rules
  • relaxation of rules
  • the application of the loss recoupment rules to the SME market
  • briefly touch on widely held companies/consolidation
  • includes case studies.
Materials from this session:

When the taxman comes

Author(s):  Weston RYAN

This presentation reviews and analyses various interactions with the ATO and includes case studies based on real situations. Readers will gain strategies for when the Taxman comes. Topics covered include:

  • various interfaces with the ATO
  • answering enquiries - verbal/written
  • necessity or otherwise to seek legal advice
  • full scale audit
  • serial understatement of income
  • new clients.
Materials from this session:

Demystifying taxation treatment of franchising

Author(s):  Ben WILSON

More and more businesses are taking advantage of the mutual benefits that are available with franchise arrangements. The franchisor is provided with an avenue to grow its business whilst the franchisee has immediate access to the trade name, operating systems and reputation of the franchisor. This paper demystifies franchises and considers many of the common tax and structuring issues associated with them. Topics covered include:

  • what is a franchise?
  • overview of regulatory framework for franchises
  • when is a franchise arrangement appropriate?
  • structuring issues for franchisors and franchisees
  • taxation treatment of:
    • upfront franchise fees
    • ongoing franchise fees
    • other fees and costs (marketing, fit outs etc)
  • Intellectual property and goodwill issues
  • Tax issues on sale, termination and expiry.
Materials from this session:

Mobile executives: outbound tax considerations

Author(s):  John MEEHAN

Sending people overseas is a complex area with many moving parts. This presentation covers the key concepts for your global employees departing for overseas. Topics covered include:

  • Australian tax residency - short-term trips v long-term assignments
  • employment income - salary, bonuses, employee share schemes
  • superannuation - continuing contributions and overseas transfers
  • policy considerations - what are employers doing?
Materials from this session:

Buy – sell transactions: What are the issues?

Author(s):  Spyros KOTSOPOULOS,  Les SZEKELY

This presentation considers various tax issues arising in respect of buy/sell transactions involving businesses or companies, including:

  • the impact of WIP
  • the sale of trading stock
  • the sale of goodwill
  • the sale of other intangibles - franchises, customer bases
  • the sale of IP
  • transfer of leave
  • transfer of other provisions e.g. warranty
  • the sale of shares
  • exits on consolidated group including TSA and TFA
  • loss integrity measures and Part IVA
  • earn outs and the impact of the ruling for vendors and purchasers.
Materials from this session:

Consolidation - a report card

Author(s):  Jenny CLARKE

This paper is an update on changes to the tax consolidation rules announced but not yet implemented or recognised as needing to be changed, including:

  • the status of amendments previously announced but not yet implemented
  • issues identified publicly by Treasury as requiring further consideration
  • other issues needing to be addressed.
Materials from this session:

The new Federal Government and business taxation

Author(s):  Tony STOLAREK

The Federal Government has a large backlog of measures from the previous government, and new tax imperatives to support business and economic policies. This paper covers the current and likely tax work program of government and discuss tax policy experiences in the first six months of the new government. Topics covered include:

  • the unlegislated policies of the previous government including TOFA 1 and 2 adjustments, TOFA 3 and 4 and the many unresolved consolidation issues
  • policies unveiled before the election, including tax reform of managed funds
  • policies announced since the election, including scrip takeover rules
  • the tax consultation directions of the new government
  • Budget 2008 developments
  • business tax changes which can be expected, including international tax reform, off-market share buy-backs and what's left of the 1936 Act
  • tax competitiveness for Australia in 2008.
Materials from this session:

Tax risk management – a view from the boardroom

Author(s):  Richard WARBURTON

This paper covers:

  • comments on the ATO letter campaign
  • how active is the Board in tax risk management?
  • advice for in-house tax professionals.
Materials from this session:

Preparing for and conducting tax litigation

Author(s):  Malcolm STEPHENS

Successful tax litigation often requires more than persuasive arguments as to the better interpretation of tax legislation. It is also important to lay the proper foundations during the audit process, and to be familiar with many of the "tricks and traps" of litigating tax disputes. This presentation covers:

 

  • responding to s263 and s264 notices (including a brief summary of the current state of privilege claims) and requests from foreign tax authorities
  • what "administrative decisions" are able to be appealed against?
  • declaratory relief: when is it available?
  • proving facts
  • preparing admissible expert evidence.

 

Materials from this session:

Tax losses- Where are we now?

Author(s):  Paul WELCH

After years of significant economic growth and prosperity, the commercial world may be facing tougher times ahead. As losses become a reality for many, taxpayers need to manage their affairs to ensure that those losses are available for future recoupment. This session focuses in particular on the two threshold tests for recouping prior period tax losses, namely: the continuity of ownership test and the same business test. This paper covers:

  • recapping the basic tests
  • the "new" Division 166 concessions
  • SBT in a tax consolidated group.
Materials from this session:

Recent developments in R&D: Are you maximising your opportunities?

Author(s):  Karen STEIN

This presentation covers:

  • Australian centred R&D - R&D undertaken on behalf of a foreign grouped company
  • summary of the new law
  • issues for consideration
  • who qualifies
  • on whose behalf is the R&D conducted?
  • transitional arrangements
  • the opportunities - 175% deductions.

 

Materials from this session:

Snapshot of recent Australian international tax developments

Author(s):  Alison YOUNG

The purpose of this paper is to outline recent Australian international tax developments over the last 12 months, including new legislation, ATO releases and activities involving the Board of Tax and Treasury. This paper covers:

  • a review of Anti-Deferral rules by Board of Taxation
  • foreign tax offsets
  • foreign hybrid issues
  • other recent inbound and outbound developments.
Materials from this session:

TOFA for real property

Author(s):  Joshua CARDWELL

With the introduction of TLAB (TOFA) 2007, TOFA is closer becoming a reality for taxpayers. This paper looks at the impact of proposed Division 230 on common leasing and real property transactions. This paper covers:

  • the current state of TOFA legislation
  • a general overview of the provisions
  • a discussion of key property related exclusions
  • the likely outcomes for common leasing and property transactions
  • the interaction with existing tax law
  • unresolved issues requiring consultation and clarification.
Materials from this session:

TOFA – Hedging in practice

Author(s):  Matt HAYES

For the first time, Australia proposes to introduce a comprehensive tax hedging regime for taxpayers. This presentation examines the effect of the new provisions in detail, the pros and cons of making a tax hedging election and current issues that arise with the new tax hedging rules. Topics covered include:

  • tax hedging - how to get it
  • effect of making a tax hedging election
  • should you make a tax hedging election?
  • tax documentation requirements
  • hedging in practice - common examples and implementation issues.
Materials from this session:

Waiver of legal professional privilege - ATO’s access and information gathering powers

Author(s):  Chris C BRANSON

Waiver of client privilege can have significant commercial consequences so it is important to understand when you may waive it including:

  • the consequences of waiver
  • adequate opportunity to claim privilege
  • express waiver
  • implied or imputed waiver
  • limited waiver.
Materials from this session:

Climate change – Indirect taxation issues

Author(s):  Amrit MACINTYRE

This paper covers:

  • Kyoto protocol
  • what are carbon credits?
  • land or not land?
  • what are the indirect tax costs of carbon trading?
  • GST - taxable or input taxed?
  • "derivative" - how wide is the scope?
Materials from this session:

Part IVA - Where are we at?

Author(s):  Allan W BLAIKIE This paper examines Part IVA's role in the structuring of commercial transactions. It also includes a review of evidentiary considerations relevant to the management of the tax audit process where Part IVA is involved and consideration of the role of the Part IVA Panel.

Materials from this session:

M&A developments

Author(s):  Michael FRAZER

This paper covers recent developments impacting M and A transactions and recent ATO announcement on scrip for scrip rollovers, more specifically:

  • scrip for scrip rollovers
  • demergers
  • section 45B
  • cases - Symbion Health and PBL.
Materials from this session:

Capital management developments

Author(s):  Simon JENNER

This paper provides an update on the latest tax developments surrounding capital management techniques, including:

  • the status of the Board of Taxation review of off-market share buy-backs
  • operation of the share capital tainting rules
  • current issues surrounding the application of the debt/equity rules
  • ATO views on the application of section 177EA.
Materials from this session:

GST developments

Author(s):  Paul STACEY

There remain a number of technical problems with the operation of GST. These unresolved issues are a source of ongoing difficulty for businesses, particularly those operating in the property sector. This paper highlights the practical impact of developments in the judicial interpretation and administration of GST, including:

  • GST litigation update including Reliance Carpets
  • changes in ATO administration of GST Law in the property sector
  • other interpretative and administrative developments
  • ongoing unresolved issues.
Materials from this session:

Promoter penalty laws, two years on

Author(s):  John KING

The promoter penalties regime was introduced in April 2006. This paper covers:

  • key points of the Promoter Penalties regime
  • the new ATO practice statements
  • status of ATO practice alerts
  • ATO choice of remedy
  • other practical issues
  • going forward.
Materials from this session:

Early stage venture capital limited partnerships

Author(s):  Gareth KIRKBY

In this session we will consider the legal and taxation features of the Early Stage Venture Capital Limited Partnership (ESVCLP) investment vehicle, which represents significant opportunities for the Australian venture capital industry. The introduction of the ESVCLP brings the Australian venture capital industry one step closer to having a world-class private equity investment vehicle affording tax-free returns to domestic and foreign investors.

  • legal and taxation features of the ESVCLP
  • how the ESVCLP compares with the VCLP
  • appropriate structuring of an ESVCLP.
Materials from this session:

The business of backyard developers

Author(s):  Yvette PIETSCH

This presentation covers:

  • income tax issues – mere realisation v development
  • is there a middle ground?
  • GST traps and tricks
  • practical examples and case studies.
Materials from this session:

Dealing with tax audits

Author(s):  Ken SCHURGOTT

Tax audits of all complexions are back in full swing after a lengthy hiatus. Reaching a satisfactory outcome for clients requires a palette of skills, tax technical knowledge, doggedness, tact and a sense of humour (at times).

This paper covers:

  • the process - how audits start and proceed to a conclusion
  • caring for the client - social skills help
  • T-accounts, estimates and section 167
  • reaching a settlement
  • graduating to criminal proceedings.
Materials from this session: