Discuss About The Small Business Concessions Superannuation.
Small businesses are allowed to gain the access to the range of concessions along with payment and reporting options. As the small business an individual might be allowed to claim a concession on the capital gains tax assets that are used by business to carry out their daily operations. Namely according to the Australian Taxation Office these assets are known as active assets (Miller and Oats 2016). The present study is based on the discussion of CGT concession policy objectives for small business. The report will further reflect whether the present regimes made in the small business CGT Concession are adequate to encounter the present objectives or they need further reformation.
As evident the CGT concession for Small Business provided under Division 150 of the ITAA 1997 targets at improving the tax relief on the capital gains which is accessible to the small business to assist these business in funding for expansion (Geljic, Koustas and Burke 2016). One of the recent changes to the CGT concession for Small Business is an increase in the net assets limits to $6 million from $5 million. A more significant amount of changes has been introduced with an alternative eligibility test for the small business entities depending upon the yearly turnover. Despite seeking reviews relating to the expansion of operations to make easier concessions for small business, yet the tax experts faces innumerable issues that challenges the application of CGT Concessions.
The small business concessions for capital gains defined under the Division 152 of the ITAA 1997 is applicable to CGT events that happens following the 11.45 a.m. on 21st September 1999. For this purpose all the references to the provision must be taken account under provision of the ITAA 1997 unless it is otherwise stated to offer a comprehensive review of entire elements of the Division 152 (West and Lam 2016). On an explanatory note, the present CGT concession for Small Business was adopted to streamline and enlarge the CGT concessions that are available to the small business. The concessions are aimed at identifying the capital proceeds from the assets disposal that is held by the taxpayer in carrying their business which is usually relied upon by the small and medium size business to either fund replacement business or retirement.
The definition of connected entities and affiliate entities have also been changed. Additionally, the eligibility requirement to obtain the CGT concession in an entity or trust has also changed from controlling individual to significant individual (Tucker 2016). Claims has been made that the these changes has enhanced the access and making it stress-free for the taxpayers to determine whether they are considered eligible for the concessions will be scrutinized to assess whether such changes has widened or lowered the scope of taxpayers eligibility for concessions.
There are four principles of CGT concession for Small Business that are available to all the types of taxpayers and forms the addition to the general 50% discount (Yuan 2017). The CGT concession for Small Business under division 152 of the ITAA 1997 consists of the
Section 102-5 of the ITAA 1997 provides statement of methods for the capital losses and the CGT discount is applied prior to applying any of these concessions (Evans et al. 2014). According to the subdivision 152-A there are three basic pre-conditions that is commonly available to all the concessions following the meeting of certain criteria. For a business to be considered eligible for CGT concession for Small Business is required to meet the conditions. These includes;
A business shall be considered eligible for the CGT concession for Small Business given the taxpayers net value of the assets included does not goes past the amount of $5 million. According to Section 152-20 (1) net value represents the amount of market values of the assets which is lower than the liabilities of the CGT concessions assets (Sanderson 2015). If it is noticed that any other form of assets was partially employed for generating income, then the entire amount of the asset is bought in to test.
Section 152-40 defines the active asset as the asset that is owned by the taxpayer or by their affiliate or an entity associated with the taxpayer and the asset is employed for carrying out the business of the taxpayer (Hicks and Tran 2014). The active asset test includes the land and buildings that is used in execution of business and intangibles assets namely the goodwill and the trade names that is inherently associated with the execution of the business.
Under the subdivision 152-D the capital proceeds must be used in associated with the retirement of the taxpayers with a lifetime limit of $500,000 for an individual. The sum that applied in this exemption should be paid as the eligible termination payment (ETP). Doubts has been raised whether the legislation has been actually formed relating to requirement of retirement of taxpayer (Ma 2015). If the taxpayer is found to be age of 55 years or then the taxpayer would be entitled to receive the exempted amount in the cash in the form of tax free ETP.
Under the subdivision 152-E small business are allowed with the roll-over concession relating to the replacement of the active assets that are purchased inside the two years or one year prior to the date of the CGT event (Burgess 2016). Any sum of gains relating to which the rollover relief is offered is effectively deferred. However, any form of capital gain that remains following the implementation of the roll over relief will be considered as the capital gain.
A conditions has been laid down that there must be a CGT concession relating to the CGT assets that is made in the year. The sale of CGT asset should give rise to capital gains which would be regarded for assessment under the general provision of the CGT (Kenny and Blissenden 2014). Another objective that has been provided in the CGT concessions is that the taxpayer is required to either meet the conditions of the net asset value or meet the criteria of small business entity. Conditions has been defined in the Subdivision 152-A relating to the CGT asset that meets the test of active asset.
Following the application of the Tax Laws Amendment Act 2009, admission relating to the CGT concession for Small Business was prolonged following the institution of rules for new business (Long, Campbell and Kelshaw 2016). Taxpayers owning the CGT asset to perform the business activities through the affiliate or through the associated entity the taxpayer may be able to obtain the access of the CGT concession if the business satisfies the small business enterprise test. Additionally, one or more partners having the CGT assets to carry on the partnership must satisfy the criteria of small business enterprise.
Preceding from the above defined description the study places emphasis on the criteria to access the CGT concession for Small Business provided under the Subdivision 152-A. Upon finding that the taxpayer satisfies the criteria of division152-A may enable the access to Small Business CGT in order to lower the capital gains by one or more four concessions (Jones 2018). Evidently CGT is viewed as the significant probable benefit to those business that meet the requirements. Nonetheless, recently the CGT test has been the centre of criticism relating to the complexity and perceived lack of fairness.
As stated by Somers and Eynaud (2015) over the last few years for Australia the small business sector holds significant importance. Findings suggest that government have lent its support towards small business so that they can flourish through tax incentives. Findings from Carling (2015) defined that taxpayers of small business CGT concessions are assessed based on the effect of cost of agreement. Research conducted by Tucker (2016) have noticed that several respondents have stated the complexity involved in understanding the CGT concessions for small business. The ATO further acknowledged the complexities of the taxpayers relating to interpretation and difficulties of compliance associated with CGT concession for Small Business.
Universally the difficulties related to compliance and supervision of CGT concession for Small Business has been acknowledged. Nonetheless, they could not be viewed as the difficulties which can be ignored but also contributes adversely in the growth of Australian economy. This helps the taxpayers of small business to be successful and offer for the superannuation. According to West and Lam (2016) it would be a significant advantage for the taxpayers given an improvement is made in the legislation to lower down the cost associated to compliance and administration.
Numerous respondents have bought forward their response that the CGT concession of small business is considered to be enormously difficult. A growing speculations regarding the provision of CGT is not providing the desired outcomes. As bought forward by Belloc (2017) there is a wide range of instances where the burden of taxation falls on the small business and eventually reduces the prospects of savings and investment with determinable impact on the overall economy of Australia. Attentions have been paid towards the tax practitioners and taxpayers relating to the experience of dealing with Division 152 and have voiced their demand for reformation.
With wide range of increasing recommendations from the Board of Taxation following the review of small business CGT concessions enabled the government to accept for changes in CGT concessions (Coleman and Sadiq 2013). There were major tranches of modifications made in the CGT concessions. The initial tranches of changes were made in Tax Laws Amendment Act 2007. Changes were made in the controlling individual requirements, maximum net asset test, exemption under 15 years, small business rollover and retirement exception.
Under the older law individual taxpayers were required to hold 50% or greater interest in an entity or trust (Grange et al. 2014). The law was later changed to enable the individual to hold only 20 or greater percentage participation in the small business of a company or trust to gain the access of the concessions and such that the individual would now be referred as the “significant individual”.
The recent changes made in the CGT concession for Small Business was an increase in the maximum net asset value test to $6 million from the previous rule of $5 million. The law takes into the consideration the negative values of asset of an associated entity in computing the net value of the CGT asset for an entity (James 2014). For the first time following the changes in rules takes account of the related liabilities for an entity to contain provision for yearly and long service leave, unearned revenues and tax liabilities. The new rules is application to the partnership firms that are in terms with the individual interest in partnership that each partner has. Hence, in a partnership if a partner is not involved in the control of partnership firm then the only the net value of the particular partner interest will be taken into the consideration.
Recently there has been another change made in the net asset is the way through which the taxpayer dwelling is accounted for test purpose. Under the older rules where a taxpayer uses any portion of its dwelling for generating income its entire value would be taken account for income test (Kenny 2013). While under the new rules it is only the proportion of dwelling that is employed for generating income is accounted for carrying out the test.
Another new changes are made in the definition of the active assets. To qualify for the active asset, the asset is required to be held for only a half the period of ownership if the asset for a more than a period of 15 years, then only the asset will be considered as the active asset (Krever 2013). Under the previous rule for an asset to qualify as the active asset it should be an active asset just before the CGT event. Whereas under the new rules the asset does not requires to be active asset just prior to the time of CGT event as long as the asset is asset is active for less than half of the period of ownership. Therefore, in such a case the asset would retain the status of active asset indeterminately.
Changes in the new rules have bought forward the alternative test for businesses that disposes their shares in the company or in the trust. Those entities can satisfy the requirements to gain the access of concessions given the stakeholders have percentage of participation in the business of the disposing shares or interest for a minimum of 90% (Sadiq et al. 2014). This changes are regarded as the portion of number of changes that is designed to enable significant individuals to hold the indirect interest in the entity. Additionally, the new rules have relaxed the 15-year exemption so that significant individual would be only required to be a significant individual for any range of period or a minimum of 15 years during the overall period of ownership. While in the earlier rule the controlling individuals were required to be a controlling individual for the whole period of ownership.
According to the Woellner (2014) it has been recognized that the compliance cost that is imposed leads to higher burden on small business. The purpose of lowering the compliance cost is for introducing the Division 152. The purpose of lowering the compliance cost is regarded as the most noble and undoubtedly one of the politically most popular mode of providing additional recommendations to the small business CGT concession. The simplified system of taxation for small business has been a considerable failure and further doubts has been introduced that whether division 152 is anymore better in this respect. Lowering of compliance costs and capital gains tax can be viewed as correspondingly exclusive.
According to Woellner (2014) the most undecided and impleaded aspects of concession of small business concession is the ability of the taxpayer to meet the $ six million value of maximum net asset test. In actual situation the there are numerous small business taxpayers whose eligibility of meeting the $6 million maximum net asset value test fails to consider the net worth of the CGT assets that are related with entities. The small business mistakenly overlooks the assets that are acquired at pre-CGT stage such as the depreciating assets or the trading stocks that does not offer capital gains but should be included in the calculations. A recommendation can be provided that the $6 million maximum net asset value test should be replaced with some other objective eligibility test (Kenny 2013). This can only be possible through revised aggregate turnover test should also take into the consideration the concession to gradually lower the $6 million maximum net asset value test.
In relation to equity and efficiency there prevails a sufficient ground for spreading the CGT concession for small business. Under the principles of equity, the rollover relief should provide to the business for involuntary disposal of assets (James 2014). This comprises of obligatory acquisition, corporate takeover and loss of assets during natural disaster. Whereas under the principles of efficiency a further recommendation is made to defer the capital gain where the taxpayers are rolling the proceeds of sale of one bigger assets to enable the business grow. Further recommendations also include for the rollover CGT asset or deferral wherever there is a legal alteration in the ownership nevertheless no actual economic change such as the asset is being transferred within the solely owned business group.
The concession made in the rollover and the retirement concessions are held important to the small business. To facilitate an easy understanding of the active asset test it is necessary to take account of the most of the CGT assets (Coleman and Sadiq 2013). An important assertion can be bought forward by stating that there is a need for removing the 50% small business reduction and 15-year exemption should be taken into the considerations. Rationalization of the small business capital gains tax CGT concessions is such a manner that it would help in enhancing the equity, efficiency and simplicity.
Conclusion:
The introduction of CGT Concession for small business have always been regarded as generous and recent changes in the rules has made the provision impressively generous. The recent changes made in the CGT Concession for small business have widened the scope for the taxpayer’s eligibility for concessions. But as the study points that it is not necessary true for all the taxpayers. The recent amendments that has been made have enlarged the CGT Concession for small business relating to the assets that are passively held.
The study evidently provides that the increase in the net asset limit to $6 million and extending the eligibility of concession in the deceased estates are viewed as the lengthy entitlement to the CGT concessions. Another change which has significantly increased the availability of concessions is the change from controlling individual with 50% interest in company or trust to significant individual having a minimum of 20% in the company or trust. In spite of the recent changes, it is necessary to promote equity and efficiency in small business as businesses have voiced their demand for reduction the active test to prove more equal results.
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