Ensuring Asset Valuations: A Vital Responsibility for SMSF Trustees

Ensuring Asset Valuations:

A Vital Responsibility for SMSF Trustees

 

If you are a trustee of a self-managed superannuation fund (SMSF), you need to ensure that your fund’s assets are reflected at market value in the annual financial statements.

Our SMSF auditor will check that the assets have been valued correctly and that the basis of the valuation is appropriate.  These valuations are also reported to the ATO on an annual basis via the tax return. 

The ATO is using the data reported in the tax returns to identify funds who have recorded the same values for assets in their annual returns for the past several years (which suggests that these assets are not reported at an appropriate market value).

There are approximately 16,500 funds who have reported the same value for certain assets for at least three income years.  This includes residential and commercial property, unlisted companies and unlisted trust investments.  Furthermore, there were no auditor contravention reports listed for these funds for potential breaches of the market valuation rules for the assets.

The ATO will be sending messages to trustees of these particular SMSFs to remind them of the obligation to report assets at market values (and the next tax return will be monitored by the ATO).

If your fund fails to meet the valuation requirements, the fund and members may be required to pay additional tax and could be liable to administrative penalties. 

What do you need to do?

If you are the trustee of an SMSF, you need to review the value of the assets that you hold.  Each year, we will request evidence from you of the market value of these assets.  Often, these values will be readily available (for example, the current price of listed shares).  Other times, the services of an independent valuer may be required to confirm the valuation.  For example, if your fund holds direct real property, you need to factor in the cost of an annual valuation into the ongoing running costs of your fund.

DISCLAIMER: The information in this article is general in nature and is not a substitute for professional advice. Accordingly, neither TJN Accountants nor any member or employee of TJN Accountants accepts any responsibility for any loss, however caused, as a result of reliance on this general information. We recommend that our formal advice be sought before acting in any of the areas. The article is issued as a helpful guide to clients and for their private information. Therefore it should be regarded as confidential and not be made available to any person without our consent.

Superannuation – Concessional Cap Increases

Superannuation Caps

 

From 1 July 2024, the concessional contribution cap for superannuation is increasing to $30,000.  This will have a flow on effect to other areas of super as well:

DISCLAIMER: The information in this article is general in nature and is not a substitute for professional advice. Accordingly, neither TJN Accountants nor any member or employee of TJN Accountants accepts any responsibility for any loss, however caused, as a result of reliance on this general information. We recommend that our formal advice be sought before acting in any of the areas. The article is issued as a helpful guide to clients and for their private information. Therefore it should be regarded as confidential and not be made available to any person without our consent.

New super tax for balances over $3 million

Proposed New Tax for Superannuation Balances over $3 million

 

On 3 October 2023, the Federal Government released draft legislation proposing a 15% additional tax on earnings for individual superannuation balances that exceed $3 million.  The new measure is set to commence on 1 July 2025.

This proposed new tax will impact on individuals that have a total balance in super or more than $3 million (this is across all superannuation accounts held).

The 15% tax will be levied on the member’s account “earnings” which will be calculated as the movement between the member’s opening and closing balance for the year (after adjusting for withdrawals, contributions and other specific exclusions).  It will only apply to the proportion of an individual’s account balance that is above $3 million (so if your balance is only just over the $3 million threshold, only a small proportion of the earnings will be subject to the new tax).

This means that for individuals who have a total superannuation balance in excess of $3 million, a proportion of unrealised gains of the fund will be taxed at 15%.  This may cause a cash flow concern for the member as they will have to pay tax on gains that have not been realised (and may be held within illiquid assets).

Where there have been negative earnings, the loss can be carried forward to offset future “earnings”.  However, there is no provision in the draft legislation for the losses to be carried back to reduce prior year unrealised gains. 

As yet, there is also no provision for the $3 million threshold to be indexed.

The tax will be levied directly to the individual member (and not the superfund).  The ATO will issue an assessment to the member personally and they can elect to pay the liability personally or withdraw funds from their superfund balance to pay the liability.

We will keep you up to date on the progress of the draft legislation.  Please do not hesitate to contact us if you would like to discuss the impact of the proposals on your superannuation fund.

DISCLAIMER: The information in this article is general in nature and is not a substitute for professional advice. Accordingly, neither TJN Accountants nor any member or employee of TJN Accountants accepts any responsibility for any loss, however caused, as a result of reliance on this general information. We recommend that our formal advice be sought before acting in any of the areas. The article is issued as a helpful guide to clients and for their private information. Therefore it should be regarded as confidential and not be made available to any person without our consent.

Increased Penalty Units: Implications for Taxpayers

Increased Penalty Units: Implications for Taxpayers


Under tax laws, the ATO can impose administrative penalties if you fail to meet your tax obligations.

From 1 July 2023, the base penalty unit has increased by almost 14% to $313. 

When the ATO imposes penalties, they can calculate the penalty using either:

  • a statutory formula, based on the taxpayers behaviour and the amount of tax avoided; or
  • multiples of the base penalty unit.
Examples of Tax Penalties

These are some of the examples of penalties that the ATO may impose:

  • Failing to retaining records as required (maximum 20 penalty units = $6,260)
  • Failing to register (or cancel) GST registration when required (maximum 20 penalty units = $6,260)
  • Failure to lodge a return or statement for a small entity (1 penalty unit for each 28 days late, up to 5 penalty units = $313 to $1,565)

Superannuation funds

The increase in penalty units can impact significantly on superannuation funds.  For superannuation funds, the penalty units are imposed per trustee.  Where a fund has a corporate trustee, the penalty will be imposed solely on the corporate trustee.  However, where a fund has individual trustees, the penalty will be imposed on each trustee.  Effectively doubling the penalty where the fund has two individual trustees.

This is another reason that we recommend that a superannuation fund should have a corporate trustee.

It is possible to change the trustee of your superfund to a corporate trustee.  Please contact us if you would like to discuss this further.

DISCLAIMER: The information in this article is general in nature and is not a substitute for professional advice. Accordingly, neither TJN Accountants nor any member or employee of TJN Accountants accepts any responsibility for any loss, however caused, as a result of reliance on this general information. We recommend that our formal advice be sought before acting in any of the areas. The article is issued as a helpful guide to clients and for their private information. Therefore it should be regarded as confidential and not be made available to any person without our consent.

Unravelling the Super Liability for Contractors

Unravelling the Super Liability for Contractors

Do you engage contractors for your business?  It is important that you are aware of your obligations regarding contractors.  There are two factors you need to think about:

(1) Whether the worker is actually an employees for your business (and not a contractor) – which means your business will be liable to withhold tax and pay super for the worker;

(2) If they are legally a contractor, whether your business still has a super obligation.

We have looked at each of these below.

1. Contractors or employees?

The first issue you need to consider is whether the workers you pay as “contractors” are actually employees?

If they are actually employees, then your business will be liable to withhold tax from their payments and also pay their super.

The ATO have a table on their website (extracted below) which outline the factors to consider when determining whether your workers are contractors or employees.  No single factor is definitive.  Rather, you need to consider the whole of the relationship.

Factor 1 – Control

  • Employee: Your business has the right to control how, where and when the worker does their work.
  • Contractor: The worker can choose how, where and when their work is done, subject to reasonable direction by you.

Factor 2 – Integration

  • Employee: The worker serves in your business.  They are contractually required to perform work as a representative of your business.
  • Contractor: The worker provides services to your business.  The worker performs work to further their own business.  They may choose to present themselves as part of your business.

Factor 3 – Method of Payment

  • Employee: The worker is paid for either time worked, a price per item or activity, a commission.
  • Contractor: The worker is contracted to achieve a specific result, and is paid when they have completed that result, often for a fixed fee.

Factor 4 – Ability to Subcontract or Delegate

  • Employee: The worker must perform the work themselves and cannot pay someone else to do the work for them.
  • Contractor: The worker is free to delegate to others who the worker will pay to complete the work on their behalf.

Factor 5 – Provision of Tools an Equipment

  • Employee: Your business provides all or most of the equipment, tools and other assets required to complete the work or the worker provides the tools but your business provides them with an allowance.
  • Contractor: The worker provides all or most of the equipment, tools and other assets required to complete the work, and you do not give them an allowance.
Factor 6 – Risk
  • Employee: The worker bears little or no risk. Your business bears the commercial risk for any costs arising out of injury or defect in their work.
  • Contractor: The worker bears the commercial risk for any costs arising out of injury or defect in their work.

Factor 7 – Goodwill

  • Employee: Your business benefits from any goodwill arising from the work of the worker.
  • Contractor: The worker’s business benefits from any goodwill generated from their work, not your business.

Source: Australian Taxation Office – https://www.ato.gov.au/Business/Employee-or-contractor/Difference-between-employees-and-contractors/#Employeeorcontractor

2. Super for contractors

Even if the person engaged is a contractor, you may still have a liability to pay super on their behalf.   If you pay your contractor predominantly for their labour, they will be regarded as “employees” for superannuation purposes and you will need to pay super for them.

When will a contractor be an “employee” for superannuation purposes?

A contractor will be an employee for superannuation purposes if:

  • They are engaged mainly for their labour (more than half of the dollar value of their contract is for their labour);
  • Their payment isn’t dependent on them achieving a specific result (ie. they are paid for their labour regardless of the result);
  • They cannot delegate the work to someone else.

If you enter into a contract with a company, trust or partnership, this entity will never be regarded as an employee for superannuation purposes.

What are the penalties for not paying superannuation for your contractors?

The penalties for not paying super for your contractors are the same as not paying super for employees.

If you do not pay super when required, there can be penalties of up to 200% of the liability (which means you have to pay the original liability plus another 2 x the liability as a penalty – and none of these payments will be deductible).  Further, the unpaid superannuation liability may become a personal liability of the directors of your company if it remains unreported and unpaid.

What should I do now?

We recommend that you:

  1. Download a list of the payments you are currently making to your contractor
  2. Summarise the payments and group all payments to the same contractor together.
  3. Review each contractor to determine whether they will be an employee for superannuation purposes (the ATO have developed a specialised decision tool that you can use to determine whether your business is required to pay super for contractors – see here.)

If you determine that your contractors are eligible for super, you will need to comply with the standard employer obligations for super (see here).

Please do not hesitate to contact us if you would like to discuss your obligation to pay super for contractors.

DISCLAIMER: The information in this article is general in nature and is not a substitute for professional advice. Accordingly, neither TJN Accountants nor any member or employee of TJN Accountants accepts any responsibility for any loss, however caused, as a result of reliance on this general information. We recommend that our formal advice be sought before acting in any of the areas. The article is issued as a helpful guide to clients and for their private information. Therefore it should be regarded as confidential and not be made available to any person without our consent.

Proposed Changes to Taxation of Superannuation

Proposed Changes to Taxation of Superannuation

In a joint media release on 28 February 2023, the Treasurer and Assistant Treasurer announced changes to the taxation of superannuation.  We have outlined below the information released by the Government.  Please note, draft legislation has not yet been released for consultation.  These proposed measures are not final until the legislation has been enacted.

Who is impacted?

The proposed measures will commence on 1 July 2025 and will impact on individuals who have a total superannuation balance in excess of $3 million.

What are the changes?

Where your total superannuation balance exceeds $3 million, there will be an additional 15% tax on the earnings on the balance over this $3 million threshold.  Given the existing 15% tax an accumulation balances, an additional 15% tax will mean that earnings on the balance over $3 million will be taxed at an effective rate of 30%.

How is it calculated?

The 15% additional tax is imposed on the earnings on the balance over $3 million.  The earnings will be calculated as follows:

Earnings = Closing super balance – Opening super balance + Withdrawals – Net contributions

These earnings are then apportioned to the balance over $3 million as follows:

Proportion of Earnings = (Closing super balance – $3 million) / Closing super balance

The 15% tax liability is then imposed on the proportion of earnings on the account balance over $3 million:

Tax liability = 15% x Earnings x Proportion of earnings

Example calculation

Let’s assume that your opening total super balance was $4 million and your closing total super balance was $4.5 million and that you had no contribution and no withdrawals through the year.  The calculation of your additional tax liability is as follows: 

Earnings = $4.5 million – $4 million = $500,000

Proportion of earnings = ($4.5 million – $3 million) / $4.5 million = 33%

Tax liability = 15% tax rate x $500,000 earnings x 33% = $24,750

This calculation determines that your super balance has total earnings of $500,000 for the financial year.  Two-thirds of these earnings relate to your balance below $3 million and one-third of the earnings relate to your balance above $3 million.  Tax is then imposed on the profit which has been earned on your balance over $3 million.

Who pays the tax?

The additional 15% tax will be imposed on the individual member and the member can elect that an amount be released from super to pay for the liability.  The member will receive a notice from the ATO to pay the additional tax (similar to the current Division 293 notices).

When does it come into effect?

The total superannuation balance will first be tested on 30 June 2026 and the first notice of tax liability will be issued to individuals in the 2026-27 financial year.

Things to consider

At the moment, it is reported that these changes will impact less than 80,000 people.  However, there is currently no provision for the $3 million cap to be indexed which means that with inflation, over time more people will be impacted by the changes.

The way in which “earnings” has been calculated means that tax will be imposed on unrealised gains (eg. if you hold real property in your fund and it increases in value, you will pay tax on this increase even though you haven’t sold the property).  This is a significant change as previously tax has only been imposed on realised gains.  This may present problems for funds that do not have sufficiently liquid assets to be able to fund the additional tax liability for members. 

Will this impact on me?

If you currently have a total superannuation balance in excess of $3 million (and it is anticipated to remain at this amount or higher), you will be impacted by these changes. 

If you do not currently have a superannuation balance in excess of $3 million, you should still consider the assets in your fund and whether it is possible that your account balance to increase above the $3 million threshold by 30 June 2026.

Further, you may also be considering making additonal contributions into super over the next few years which will impact on your total super balance.  For example, if you are thinking about selling your business in the next few years, you may be considering taking advantage of CGT concessions that enable you to roll some of your capital gain into super.  This may result in your balance going over the $3 million threshold.  These proposed changes should be considered when you are deciding whether to contribute additional funds into super.

What should I do?

As noted above, at the moment, draft legislation hasn’t been released.  We always advise clients to act cautiously where legislation has not yet been enacted.

However, it is also prudent for you to review your current balance and your proposed future investment into super to consider whether your balance may exceed the $3 million threshold and what impact this will have.  Even if you consider that your balance does (or may in the future) exceed the threshold, it may still be more tax advantageous for you to have the money in super.

We recommend that you speak to your financial advisors with regards to your superannuation strategy and whether this needs to be adjusted in light of the proposed changes.

We are happy to discuss these changes with you.  We note, however, that we cannot provide you with advice regarding whether it is appropriate for you to contribute or withdraw money from superannuation – this advice needs to be provided by your financial planner.  We can, however, work with you and your financial planner to calculate your tax liability based on your superannuation balance.

DISCLAIMER: The information in this article is general in nature and is not a substitute for professional advice. Accordingly, neither TJN Accountants nor any member or employee of TJN Accountants accepts any responsibility for any loss, however caused, as a result of reliance on this general information. We recommend that our formal advice be sought before acting in any of the areas. The article is issued as a helpful guide to clients and for their private information. Therefore it should be regarded as confidential and not be made available to any person without our consent.