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  • 2022 completed issues

    The following public advice and guidance issues have been completed in 2022.

    [3917] Employee share schemes - what constitutes a 'genuine disposal restriction'

    Purpose
    This Determination outlines the legal principles for determining whether an ESS’s disposal restrictions were ‘genuine disposal restrictions’ and, if they were, when employees are no longer ‘genuinely restricted’ by the scheme for determining the ESS deferred taxing point.

    Outcome
    Taxation Determination TD 2022/4 Income tax: when are you genuinely restricted from immediately disposing of an interest provided under an employee share scheme? published on 6 April 2022.

    [3962] Commercial debt forgiveness – for reasons of natural love and affection

    Purpose
    This Determination sets out the Commissioner's view on whether an entity, that is not a natural person, can forgive a debt for reasons of natural love and affection.

    Outcome
    Taxation Determination TD 2022/1 Income tax: commercial debt forgiveness - does the exclusion for debts forgiven for reasons of natural love and affection require that the creditor be a natural person? published on 9 February 2022.

    [3990] Misappropriated or stolen funds

    Purpose
    This update modernises Taxation Ruling TR 93/25 to take into account changes in legislation and case law.

    Outcome
    The update to Taxation Ruling TR 93/25 Income tax: assessability of proceeds from illegal activities, treatment of amounts recovered and deductibility of fines and penalties published on 30 March 2022.

    [3992] Administration of penalties in relation to electronic sales suppression tools

    Purpose
    This Practice Statement provides guidance to staff when imposing and/or remitting administrative penalties relating to the production, supply, possession and use of electronic sales suppression tools.

    Outcome
    Law Administration Practice Statement PS LA 2022/1 Administrative penalties for electronic sales suppression tools published on 24 February 2022.

    [4020] Aggregated turnover issues for large business

    Purpose
    This Determination sets out the Commissioner’s view on the application of the ‘connected with’ concept in section 328-125 of the Income Tax Assessment Act 1997 to corporate limited partnerships.

    Outcome
    Taxation Determination TD 2022/5 Income tax: aggregated turnover – application of the ‘connected with’ concept to corporate limited partnerships published on 30 March 2022.

    Purpose
    This Determination sets out the Commissioner’s view on the application of the ‘public entity exception’ to the indirect control test in subsection 328-125(8) of the Income Tax Assessment Act 1997.

    Outcome
    Taxation Determination TD 2022/6 Income tax: aggregated turnover – application of the public entity exception to the indirect control test published on 30 March 2022.

    Purpose
    This Determination sets out the Commissioner’s view on the application of the ‘connected with’ concept in section 328-125 of the Income Tax Assessment Act 1997 to partnerships, foreign hybrids and non-entity joint ventures.

    Outcome
    Taxation Determination TD 2022/7 Income tax: aggregated turnover – application of the ‘connected with’ concept to partnerships, foreign hybrids and non-entity joint ventures published on 30 March 2022.

    [4026] Tax implications of Inter-bank Offered Rate reform

    Purpose
    This guidance assists businesses to understand the common tax implications when changes are made to financial arrangements due to Inter-bank offered rate (IBOR) reform.

    Outcome
    Web guidance on Inter-bank Offered Rate reform was published on 11 March 2022.

    [4034] Employee share schemes – deductibility of establishment and ongoing costs

    Purpose
    This Determination sets out the Commissioner’s view on the deductibility of expenses incurred by an employer to establish and administer an ‘employee share scheme’ often includes establishing and administering an 'employee share trust'.

    Outcome
    Taxation Determination TD 2022/8 Income tax: deductibility of expenses incurred in establishing and administering an employee share scheme published on 6 April 2022.

    [4038] Car parking fringe benefits

    Purpose
    This Decision impact statement outlines the ATO's response to the Full Federal Court's decision in Commissioner of Taxation v Virgin Australia Regional Airlines Pty Ltd [2021] FCAFC 209 concerning the interpretation of ‘primary place of employment’ in subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 when read with the extended meaning of ‘business premises’ in subsection 136(2) of that Act.

    Outcome
    The comments period for this Decision impact statement has closed, and no updates will be made. Work continues on updating impacted advice and guidance and guidance outlined in the decision impact statement.

    [4040] Passing on and refund of excess GST

    Purpose
    This Decision impact statement outlines the ATO’s response to the decision of the Administrative Appeals Tribunal in M3K Services Pty Ltd and Commissioner of Taxation [2021] AATA 4416 concerning whether the taxpayer passed on excess goods and services tax (GST) to its customers and, if it had, whether the excess GST was refundable to the taxpayer under section 142-15 of the A New Tax System (Goods and Services Tax) Act 1999.

    Outcome
    The comments period for this Decision impact statement has closed and no updates will be made.

    [4041] Deductibility of payments to cancel options and rights held by employees

    Purpose
    This Decision impact statement outlines the ATO's response to the Full Federal Court's decision in Clough Limited v Commissioner of Taxation [2021] FCAFC 197 concerning the deductibility under section 8-1 of the Income Tax Assessment Act 1997 of certain amounts paid to directors and employees of a company as a condition precedent to a Scheme of Arrangement to take the company over.

    Outcome
    The comments period for this Decision impact statement has closed and no updates will be made.

    [4042] Ordinary meaning of the term 'employee'

    Purpose
    This Decision impact statement outlines the ATO’s response to the High Court's decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 which concerns whether the applicant was an employee of a labour hire company for the purposes of the Fair Work Act 2009. While not a party to the litigation, the decision of the High Court is relevant to legislation administered by the Commissioner involving the ordinary meaning of the term ‘employee’.

    Outcome
    The comments period for this Decision impact statement has closed and no updates will be made. Work continues on updating impacted advice and guidance outlined in the decision impact statement.

    Last modified: 03 Jun 2022QC 67956