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GO Recent case provides valuable insights for SMSFs

The recent decision of Deputy Commissioner of Taxation v Lyons [2014] FCA 1353 provides various insights for self managed superannuation fund trustees.

Facts of decision
On 6 June 2008, the Lyons Family Superannuation Fund (‘Fund’) was registered as a self managed superannuation fund. At all relevant times, Mr Lyons and his now former wife, Mrs Lyons, were the trustees and members of the Fund.

Between 1 July 2008 and 3 July 2008, the Fund received rollovers in respect of the members. As at 3 July 2008, the Fund had cash assets of $193,459.44.

At the time the Fund was established, Mr and Mrs Lyons carried on a retail business. The business suffered financial difficulties and Mr and Mrs Lyons ultimately became bankrupt in March 2010.

Prior to their bankruptcy, as a means of supporting the struggling business, Mr Lyons (in his capacity as trustee of the Fund) commenced lending money to his brother-in-law, Mr Ellis. Mr Ellis would then immediately transfer the borrowed sums to the retail business account of Mr and Mrs Lyons. Between the period of 3 July 2008 and 25 May 2009, a total of $190,000 was lent from the Fund to Mr Ellis. None of this $190,000 was recoverable.

Mr and Mrs Lyons were advised by their financial planner that loaning the money is the manner described above was allowable. The judge in the case described this advice as ‘wrong.’

The matter came to a head in the subsequent financial year when the Fund’s auditor lodged an auditor contravention report in respect of the Fund for the 2009 financial year. This led to an AO audit — with which Mr Lyons fully complied — and ultimately a letter of non-compliance being issued for the Fund in relation to the 2009 financial year. Mr Lyons did not dispute the contraventions or the letter of non-compliance.

The matter was then brought to the Federal Court to determine the appropriate penalties that should be imposed.

The outcome of the matter was that:

• Mr Lyons was ordered to pay a monetary penalty of $32,500;

• Mr Lyons was ordered to pay the Commissioner’s costs of and incidental to the proceeding fixed in the sum of $5,000; and

• with respect to the non-compliance, the trustees of the Fund were assessed on the assets of the Fund immediately prior to the 2009 financial year, being $2,480.

Key lessons
Lyons’ case provides the following insights for self managed superannuation fund trustees:
• Trustees are ultimately responsible — Acting as trustee of a self managed superannuation fund is a serious role and trustees are under an obligation to ensure the fund complies with superannuation law. It is no defence to say that the trustee relied on advice. That being said, reliance on advice is likely to be taken into consideration with respect to the quantum of penalties to be imposed for any contravention.

Practically, this means that if there is any doubt in relation to the compliance of a proposed course of action, expert advice should be sought from an appropriate professional and second opinions should be obtained as deemed necessary.

Further, this serves as another reminder that, although increasing in popularity, self managed superannuation funds are not for everyone and potential trustees should be made aware of the added responsibility and risks associated with running such a fund.

• No such thing as a ‘passive trustee’ — For reasons that are unclear from the decision, the Deputy Commissioner only commenced proceedings against Mr Lyons (and not Mrs Lyons). Despite this fact, it is important to remember that — unless the deed provides otherwise — co-trustees are under a duty to act jointly and their decisions as trustee must be made unanimously.

• Timing of non-compliance can have significant consequences — As previously noted, the Fund was made non-complying for the 2009 financial year and assessed on the assets of the Fund immediately prior to 1 July 2008, being $2,480. Had the rollover amounts been paid into the Fund one day earlier (ie, prior to 1 July 2008), the trustees would have been liable for significant additional tax.

Australian SMSF Auditer
Self Managed Superannuation fund

This illustrates how the financial year in which a fund is made non-complying can have significant consequences.

(For completeness, the parties to Lyons’ case agreed that the above was not planned as a means of obtaining a taxation benefit, but rather a stroke of luck with respect to timing.)

• ‘New’ penalty regime could change things — From 1 July 2014, the ATO has broader powers to impose administrative penalties for contraventions of the superannuation legislation. The contraventions in Lyons case occurred before this time and therefore did not apply. It is unclear whether the new law would have changed the outcome of Lyons’ case.

Lyon’s case provides various insights for self managed superannuation fund trustees. Perhaps most importantly, it serves as a reminder that running an SMSF comes with added responsibility and risk. Trustees are responsible for all relevant administrative and compliance tasks and relying on professional advice is no defence to a contravention. It follows that SMSFs are not for everyone.

SMSFs are primarily for those people who wish to be in control of their financial affairs and who are capable of taking an active role in the management of their fund. People who are not willing to take an active interest in their own financial affairs should consider the possible advantages of leaving their superannuation affairs to professionally managed public offer funds.

* * *

This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional.

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Qantas posts $203m half-year net profit in massive turnaround

CEO Alan Joyce
PHOTO: Qantas CEO Alan Joyce smiles as he delivers the company’s half year results (AAP: Dean Lewins)

Qantas has flown clear of its recent losses to post a first-half profit of $203 million, boosted by cut-price fuel and continuing cost cutting.

Today’s result was in stark contrast to the record full-year loss of $2.8 billion posted by Qantas for the 2013–2014 financial year, following a $235 million half-year loss for the six months to December 2013.

Investors quickly rewarded the result, with Qantas shares jumping 6.8 per cent in early trade on the ASX.

By 10:30am (AEDT) those gains had been pared to a rise of 3.9 per cent, taking Qantas stocks to $2.92 in comparison to the record low of 95 cents they hit in December 2013.

Underlying earnings, which strip out one-off items, came in at $367 million for the six months to December – beating market expectations of a $350m profit.

The turnaround has been driven by cost savings from a $2 billion transformation program, lower fuel prices, and stronger returns in Qantas’ domestic and international businesses.

The program aims to cut costs, freeze capacity and remove 5,000 jobs.

Qantas is forecasting total benefits from the restructuring will reach $875 million by the end of June, 16 months into the three-year program.

“The decisive factor in our best half-year result for four years was our complete focus on the Qantas transformation program,” Qantas chief executive Alan Joyce said.

“Our financial position is significantly stronger because of the actions we’ve taken, and we are giving Qantas a solid foundation for growth in earnings.”

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Term deposit interest rates remain low as savers struggle to get good bang for their buck

RETURNS from term deposits, once a haven for savers, continue to fall and will drop even further along with the recent decline in official interest rates.

The historically low cash rates have been great for borrowers but if you flip the coin it’s a completely different story for savers.

Now, instead of leaving your cash locked up for months to secure the best savings rates, it is often better to shop around for offers by the numerous online banks and be prepared to switch accounts regularly.

The Reserve Bank of Australia has just dropped rates to 2.25 per cent, from 2.5 per cent — the first decline in the cash rate since August 2013.

Banks are continuing to lower their rates on both term deposits and “at-call” online savings accounts making it tough for savers to earn a decent return.

New figures by financial comparison site Canstar show savers with $10,000 in a fixed deposit account can get an average rate of 2.94 per cent and 3.2 per cent for locking away their cash for six or 12 months respectively. That’s $320 paid in interest for a 12-month term deposit and $147 paid for a six-month term deposit.

On a $5000 six-month term deposit the average rate is just 2.92 per cent and for a 12 month account it’s 3.07 per cent.

Canstar’s research manager Mitchell Watson encourages savers to think about putting their cash in “at-call” online savings accounts which in most cases offer higher interest rates but the returns delivered do fluctuate.

“While they don’t have the certainty around what their return is going to be, if you compare the two against each other then online saving accounts are definitely something they should be considering,’’ he says.

“They also need to place other consideration around elements that make up that (at-call savings) rate, it might only be a promotional rate and for a short time.

“Or it could be a rate where they need to make certain conditions such as depositing a certain amount each month.”

Watson says savers should factor in inflation and tax charges on interest gained which could override the benefit of locking their money away in the bank.

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CHOICE reveals size of proposed internet tax

CHOICE says the internet tax would actually be an additional 60pc or more in total for collection. Picture: Thinkstock Source: Supplied

CHOICE has for the first time revealed the size of the ‘internet tax’ proposed by local retailers, saying consumers and the economy more broadly would likely suffer from such a knee-jerk response.

In a proposed model, the cost of a $20 parcel would rise to over $35 under the ‘internet tax’, with the addition of delays faced by consumers required to pay for collection.1

“You can’t have a cost-benefit analysis that ignores costs to consumers, and right now there are proposals that would charge consumers over $13 for the government to collect as little as $2 in revenue,” says CHOICE Director of Campaigns, Matt Levey.

“Australia does not need a new tax on the internet designed to prop up parts of the local retail sector, hitting consumers with big costs and delays, and dragging down our competitiveness.

“We continue to hear arguments that states are being denied hundreds of millions of dollars in GST revenue because of the $1000 low-value threshold on imported goods, but this glosses over the substantial expense of collecting the tax without reforms to parcel processing.

“The fact is that if you lower the threshold without streamlining the process, you turn every parcel delivery business into a doorstep tax collector, and hand consumers big costs, delays and bundles of red tape.”

CHOICE says that proposals promoted by some retail groups would see consumers foot the bill not only for the GST and parcel delivery, but for the delivery company’s costs in collecting the tax.

The consumer group has repeated its support for a level playing field for local and overseas retailers, but says this should not be achieved by imposing costs that outweigh the benefits.

“This is not about the 10 per cent GST. In many cases it’s an additional 60 per cent or more for collection, along with delays and paperwork,” Mr Levey says.

“Bizarrely, the ‘internet tax’ would not even address the main reasons Australians shop online overseas, which have nothing to do with the GST.”

CHOICE recently released research showing the top reason Australians purchase online is so they can shop at the hours that suit them, followed closely by the convenience of getting products delivered to their door. Only 12 per cent nominated saving on “paying duties and taxes by purchasing on overseas websites”.

The GST threshold will be high on the agenda when Treasurer Joe Hockey meets his state and territory counterparts in Canberra tomorrow.

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Why a poetic sign language interpreter went viral in Australia

Why a ‘poetic’ sign language interpreter went viral in Australia
Why a ‘poetic’ sign language interpreter went viral in Australia

An Australian sign language interpreter who translated the Queensland Premier’s live Cyclone Marcia press conference has made waves on social media. But what did his energetic performance add to the important storm information being broadcast?

A number of sign language interpreters have hit the headlines in the past few years for their show-stealing performances at public events. In 2013, viewers of the Nelson Mandela memorial called out an interpreter for not using correct South African sign language.

In 2012, Lydia Callis, who interpreted at live press conference updates for New York’s Mayor Bloomberg during Superstorm Sandy, shot to fame for her energetic translations. It’s thought that people take particular note of the interpreter because it’s a novelty that they don’t see on their screens too often.

The latest one to go viral comes from Australia.

Mark Cave has been widely praised by deaf and hearing tweeters alike forhis interpretation of Queensland Premier Annastacia Palaszczuk’s live updates on the status of Tropical Cyclone Marcia. He is “doing so much for AUSLAN and understanding”, one Tweeter said of the 30-year-old. AUSLAN is Australian sign language, the UK equivalent is BSL. Another tweeter pointed out that sign language is “a must for all emergency events”. Some users aren’t fluent in English so can’t benefit from subtitles.

Cave interprets for Annastacia Palaszczuk and the Queensland Police Service Deputy Commissioner Steve Gollschewski

“Interpreters are seen on TV screens during emergencies like Cyclone Marcia or Superstorm Sandy because that’s the best way for authorities to ensure that deaf people who use sign language get the message that everyone else is getting,” says Charlie Swinbourne, editor of deaf community blog The Limping Chicken.

Sign language, he says, incorporates not only hand movements, but body language and facial expressions too. Just as hearing people might modify the tone of their voice, Swinbourne says that interpreters have to be more animated than usual when translating information in emergency situations, to convey their seriousness. “To a non-signing audience, those relatively dramatic signs, for words like ‘storm’, really stand out,” he says.

People with no connection to the deaf community have described Cave’s animated performance as “hilarious”, “entertaining”, “poetic” and “mesmerising”, like an “interpretive dancer”. @Lou_OMara loves the interpreter’s facial expressions, saying that he should be on children’s television show Play School.

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Australian Bitcoin Exchange Claims Exemption from 10% Government Tax

Australian exchange Coin Loft has received an official ruling exempting it from having to charge Goods and Services Tax (GST) on local bitcoin sales, according to the company.

The exchange claims the private ruling from the Australian Taxation Office (ATO) means that it need not apply the GST to its bitcoin exchange price. As a result, the firm ceased charging the tax on 26th January and says it is the first Australia-based exchange to do so.

The tax must still be charged on the commission component of the order, however, and a Coin Loft blog post also stated that commission fees would increase from 3 to 5% as a result of the process, though the overall price would remain competitive with its GST-charging competitors.

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