The ATO has announced that it will be conducting compliance activity on various economic stimulus measures introduced to help businesses recover from the effects of COVID-19. These stimulus measures include loss carry-back, temporary full expensing and accelerated depreciation. While the ATO said it will continue to support most businesses doing the right thing, it is looking at behaviour or development of schemes designed to deliberately exploit various stimulus measures.
By way of background, the loss carry-back measure allows eligible corporate entities to claim a refundable tax offset in their 2020-21 and 2021-22 company tax returns. In essence companies get to “carry-back” losses to earlier years in which there were income tax liabilities which may result in a cash refund or a reduced tax liability. The temporary full expensing measure allows eligible businesses to immediately deduct the business portion of the cost of eligible new depreciating assets or improvements held and ready for use between 6 October 2020 and 30 June 2022.
Eligible businesses also have access to the accelerated depreciation measure for the 2019-20 and 2020-21 income years, in which the cost of new depreciating assets can be deducted at an accelerated rate. Specifically, in relation to loss carry-back, the ATO will looking for businesses that are deliberately inflating deductions or omitting income to generate losses. It will also look for signs of businesses entering into contrived schemes to obtain a benefit of the loss carry-back tax offset such as shifting or creating losses through non-arm’s length dealings or shifting franking credits to a corporate entity (either directly or indirectly).
In relation to temporary full expensing and/or accelerated depreciation, the ATO notes the following behaviours which will attract its attention: entering into contrived schemes to obtain a benefit of a temporary full expensing deduction, including schemes involving: manipulation of aggregated turnover; non-commercial transactions involving the transfer of an asset between related entities; artificially inflating the cost of assets (including inappropriate valuations) through non-arm’s length dealings; claiming deductions for assets acquired solely for a non-business purpose or failing to take into account any portion of non-business use; deliberately misclassifying or reclassifying excluded assets (eg reclassifying capital works and buildings as eligible assets under temporary full expensing or Div 43 capital works and buildings as eligible assets under accelerated depreciation); deliberately inflating the amount of accelerated depreciation deduction by applying the incorrect adjustable value or effective life; failing to take into account the car limit when calculating the deduction; and lacking evidence to substantiate the claim (including the cost of assets) such as invoices, contracts, supplier agreements or independent valuations.
The ATO notes that it will review claims for loss-carry back, temporary full expensing and accelerated depreciation as part of its tax time compliance activities as well as actively identifying tax schemes and arrangements seeking to exploit those schemes. Where cases of concerning or fraudulent behaviours are identified, it will actively pursue the claims including imposing financial penalties, prosecution and imprisonment for the most serious of cases.
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