Technology has changed the way people communicate and distribute thoughts and ideas. It’s becoming increasingly easy to spread information, regardless of the accuracy.  

Defamation laws therefore extend to online publications, such as posts, comments and reviews on social media sites such as Facebook. If you have had offensive or vilifying statements made about you that have ruined your reputation or the reputation of your business, you may be able to take legal action to get them taken down and receive compensation. 

According to common law, there are three elements that must be established in a defamation action:

• That the content has been published to an audience
• That the matter carries a defamatory meaning – making statements that are untrue and that lower your standing in the estimation of ordinary reasonable people
• It has caused you loss such as loss of reputation or business

The relevant legislation governing this area of law in NSW is the Defamation Act 2005 (NSW), which clarifies and provides further elements, including serious harm and the issuing of a concerns notice. 

The serious harm element is defined under s 10A to be satisfied where the publication has caused or is likely to cause serious harm to the reputation of the person. Relevant considerations for whether harm is likely to be considered ‘serious’ includes:

• Evidence of what actually happened after the publication of the material
• How wide and interested the audience of the publication are
• Who the audience are and whether they are those whose opinions matter to the plaintiff

Before defamation proceedings can be commenced, a concerns notice needs to be provided to the proposed defendant. According to S 12A, the concerns notice is required to:

• Be in writing
• Specify the location where the text can be accessed
• Inform the publisher of the alleged defamatory imputations
• Inform the publisher of harm that is considered serious harm to person’s reputation caused or likely to be caused by publication 

The other preliminary requirement before a person can commence proceedings is that the applicable period for an offer to make amends has lapsed. The applicable period is usually 14 or 28 days depending on the situation, as set out in s 14.

It is also important to note that, while you can bring defamation actions on behalf of a company, it must either have less than 10 employees or be not-for-profit, as according to s 9(1)-(2). A further limitation is that the serious harm element is not satisfied unless the publication has caused or is likely to cause the company serious financial loss.

If the above requirements have been met, then a person may commence defamation proceedings. However, it is crucial to address any possible defences that would invalidate the defamation claims. Some of the most common defences are explained below:

• Defence of justification which applies if the defendant can prove that the defamatory imputations are substantially true.
• Defence of contextual truth which applies if the defendant can prove that the matter carried one or more imputations that are substantially true and any other imputations do not further harm the plaintiff’s reputation. 
• Defence of absolute privilege which applies to matters published in the course of court proceedings or the proceedings of a parliamentary body. 

Also note that you have one year from the date of publication of the defamatory content to commence proceedings, as per s 14B of the Limitation Act 1969 (NSW).

We have template letters and guides which provide an example to follow and tips on forming defamatory imputations. They are specifically suited for defamation on social media.

If you have any questions or require any further assistance, please feel free to contact us.

If you’ve made a gain on crypto, you might be wondering what your options and possibilities are. In this third part of our four-part series, our tax law specialist, Adam Ahmed, discusses the most frequently asked questions for crypto gains. 

Question 1: Is inflation taken into account at all?

Inflation is characterised by a rise of the general level of prices, which then equates to a decline of the purchasing power of a currency. In 2021, inflation was sitting at about 3.5% for the year when calculated through the Consumer Price Index. 

If your crypto assets had also risen 3.5% in value over the same period, you might then argue that you haven’t actually made a gain because its real value (compared to other goods and services in the economy) has stayed the same. If you were to cash out on the gain and spend it on goods such as groceries, the amount you would be able to buy with your crypto would not have changed. 

However, the ATO expects you to pay tax on your nominal gains and it therefore does not take into account inflation. The tax laws are rigid and designed to tax you on any increase in the Australian dollar, nominally. 

Question 2: If you’ve made a gain, how would the ATO find out?

The ATO may or may not find out that you’ve made a gain on crypto when you actually make it. However, when you actually come to spend the money, the ATO will find out. This is because it will need to somehow materialise in your account and they will question where it came from. This is especially true if the amount you’re going to spend is high compared to what your income or spending usually is. 

It makes more sense to follow the rules and focus on what your rights and obligations are. It’s important to have the right framework in place. That way you will be prepared if the ATO questions you or wants to see relevant evidence. 

Australia’s tax laws are based on a self assessment system where the taxpayer is expected to work out what their own tax should be and then notifies and pays the amount to the ATO. 

However, the ATO auditing powers are extensive. If they provide you with a number, which may or may not be correct, it takes a lot of time, energy and evidence to try and prove them otherwise. 

Question 3: Then what can you actually do if you’ve made a gain?

The possible approaches depend on whether the gain is realised or unrealised, and also on the unique facts of the situation. 

In Australia, we have set options for things to be categorised in and then taxed accordingly. Things such as crypto, which don’t fit neatly in a box, have multiple possibilities and also risks. 

Since the courts have said that it is not treated as a foreign currency, there are different possibilities for how it may be treated. It is most similar to shares, although there are some obvious differences between the two because shares are not being used to purchase other goods and services the same way crypto is. 

From the ATO perspective, the default is to treat it as a capital gain, on which you may be able to claim a capital gains tax discount. Currently, when you sell or otherwise dispose of an asset, you can reduce your capital gains by 50% if you have owned the asset for at least 12 months and are an Australian resident for tax purposes. 

However, the specific facts of a situation usually dictate what options will be available – it is dependent on things like who holds the asset and how they came to acquire it. 

In the next part, we will go through different examples to demonstrate the wide range of options that might be available. 

In the meantime, if you have any questions, feel free to contact us.

If you’ve made a loss on crypto, you might be wondering where that leaves you in regards to your tax position. Since Bitcoin was found by the AAT to not be a foreign currency, as we discussed in the first article of this series here, it is generally treated similarly to shares in this sense. 

For active traders: non-commercial loss rules may apply

If you are an active trader, you may be able to offset this loss against your other income. You generally can’t claim a loss for a business that is a hobby and unlikely to ever make a profit. The non-commercial loss rules determine whether you can in this case or have to defer the loss until you make a profit. 

To be able to offset this loss, you must satisfy two requirements. The first is the income requirement, which is met where the sum of the four elements for calculating your income is less than $250, 000. The elements are:

• Taxable income, which is the assessable income minus your allowable deductions for a year.
• Reportable fringe benefits, which is shown on a payment summary if it passes the threshold and takes part in this calculator.
• Reportable super contributions which include your reportable employer super contributions and your personal deductive contributions.
• Total net investment losses from 
  • Rental property investments such as negatively geared rental properties
  • Financial investments such as negatively geared share portfolios 

The second requirement is to pass at least one of the following four tests:

• Your assessable income, made up from your ordinary income (such as gross earnings excluding GST) and statutory income (such as capital gains) from your business activities must be at least $20, 000 for the year. 
• Your business has made a tax profit in three out of the five past years, which excludes any loss from that business that you had earlier deferred
• You are using real property, which includes land, structures and interest in both, of at least $500, 000 in your business activity on a continuing basis. 
• You use $100, 000 worth of ‘other assets’ in your business activity. This includes equipment, trading stock, items leased from another entity, and trademarks, patents and copyrights. This does not include real property or vehicles. 

If these two requirements are satisfied, then you may be able to offset your crypto losses against your income from other work. Otherwise, the loss would get parked to the side and you would only be able to claim it against your taxes if you later make profit off crypto.

For passive investors: capital loss rules may apply

If you have made a loss as a passive investor, capital loss rules will probably apply. This would mean you could deduct the loss you’ve made on crypto from your capital gains to reduce your capital gains tax. These must be used at first opportunity which means that if you’ve made a loss in the current year, you must use the loss to reduce any capital gains in the current year.

If your capital loss is greater than your capital gain, you could carry it forward and deduct it from capital gains in later years. There is no time limit for this. It is also important to note that a trading loss can be applied against capital gains but a capital loss can’t be applied against trading gains.

Conclusion:

Depending on whether you satisfy the non-commercial loss rules, your main two options are either to use the loss to offset your income or to use it to decrease your capital gains tax, with the option to park it if outweighs your capital gains.

If you have any questions or would like further assistance, please contact us.

The Administrative Appeals Tribunal’s recent decision to a court case we ran against the ATO has significant consequences on the tax status of Bitcoin. In the first article of this four part series, we explain the crux of the case, summarise our submissions and lay out the judge’s conclusion.

The heart of the issue 

Do you have to pay tax on bitcoin? The answer lies in whether Bitcoin is considered a foreign currency for the purposes of the Income Tax Assessment Act 1997. If it is a foreign currency, then tax requirements under div 775 are applicable. Section 995-1.1 defines a foreign currency as ‘a currency other than Australian currency.’ The interpretation of this section will solve the question.

Part 1 of Submissions: How Currency should be interpreted

We submitted that the word ‘currency’ should be interpreted widely, aligned with previous cases. For example, in Watson v Lee, the High Court noted that the word ‘currency’ in a constitutional context need not be confined to money of a particular nation. Further, things like rum and bank issued notes were considered currencies and within the Commonwealth’s regulating powers. The High Court of Australia again had a similar approach in the case of Goldsbrough Mort & Co Ltd v Hall, where it noted that currency need not be issued by governmental entities. 

We also referred to the Explanatory Memorandum of the Bill to shed light on the purpose behind the foreign currency definition. In paragraph 2.7, it is clear that the intention was to create a framework where foreign currency gains and losses arising out of business transactions do not fall outside the income tax net. Reference was made to the ERA case, where a taxpayer did not have to pay tax on their foreign currency gains because they dealt only with US dollars and did not convert the proceeds into Australian dollars. The parliament, at paragraph 2.21, noted that the new law was intended to bring to account all foreign currency gains and losses for tax purposes, regardless of whether it has been converted into an equivalent amount of A$.

Part 2 of Submissions: Bitcoin fits the definition of foreign currency

Having regard to the purpose of bitcoin, we argued that it fit the definition of foreign currency. The Satoshi Paper, the blueprint used to code and develop bitcoin, written by its founder Satoshi Nakamoto, describes the purpose of bitcoin as to allow payments to be sent directly from one party to another without engaging a financial institution. 

WE assessed that Bitcoin was programmed solely for this function, it has no other use. We gave mathematical support for this premise by reference to the developer guide, which explains how it uses cryptography to create security for transactions between two willing parties. ‘

We also supported our argument by pointing out its current usage, in both general transactions and complicated arrangements. It is possible to lend and earn interest on bitcoin, as well as invest in derivatives and securities using it. We gave examples of foreign governments such as Sweden and Switzerland which have accepted it as legal tender. 

Therefore, within the legal definition of currency and with regard to the intention of Parliament in enacting the definition, we argued that Bitcoin fits the definition of currency. And if it is accepted to be currency, it would automatically qualify as ‘foreign currency’ as per the Income Tax Assessment Act 1997, since it is a currency ‘other than Australian currency’.

The Tribunal’s Decision:

Ultimately, the Tribunal held that the phrase ‘foreign currency’ should be read down to not include decentralised ‘unofficial’ currencies such as Bitcoin. 

While admitting that the s 995-1 definition is awkward, the Tribunal noted that ‘an Australian currency’ should be interpreted as a reference to the unit of exchange established in the Currency Act, and therefore ‘another currency’ must be a similar office currency issued by a sovereign state. 

Although Bitcoin may satisfy the usual definition of currency since it is a fungible, measurable and used as a medium of exchange for goods and services, it was held not to satisfy the narrow definition under the Income Tax Assessment Act.

The Tribunal made a final note that the question of whether cryptocurrencies should be dealt with as a foreign currency for the purposes of income tax is a question for the Parliament. 

This finding would presumably extend to all other cryptocurrencies that are not issued by a government.

Conclusion

In conclusion, since Bitcoin currently does not fall within the definition of foreign currency for the purposes of the Income Tax Assessment Act, the tax requirements set under div 775 are not applicable. 

In the following three articles and videos of this series, we explain the implications of this. 

To read the Tribunal’s findings: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/1840.html

PDFs to our submissions and the ATO’s submissions are also below. 

If you have any questions, please feel free to contact us here or call us on our number: 02 7200 8200, mentioning that you read this article.

Setting up a payment plan with the ATO is one of your best options if you have been or are unable to meet your tax obligations on time. If you opt to ignore it instead, the ATO may enforce action against you which has a high chance of leaving you in a worse position.

A payment plan would allow you to pay your debt over instalments. It’s essential to be prepared and do it right the first time to avoid suffering the harsh consequences of defaulting on these payments.

Your preparation can be split into three main steps: understanding what the ATO expects; understanding how the ATO is likely to perceive you; and planning your proposal to the ATO.

1. Understanding what the ATO expects.

The ATO’s approach is to generally seek for you to pay as much as you possibly can as soon as you possibly can. 

They will also expect you to pay all tax lodgements in full on time in the future. This is important to note because, in this case, you will be paying two sets of taxes at a time: the regular taxes you have to pay and the payment plan debt instalments. 

If you don’t lodge either set of taxes on time, that will be considered a default of the plan, and the ATO may take action against you. This makes it hard to get a payment plan approved in the future.

2. Understanding how the ATO may perceive you

The ATO may presume that you have the money in an asset such as a house or a car. If this is the case and you want a payment plan of longer than 24 months, they might ask for security over your house.

The ATO would otherwise be looking for a exceptional circumstance that would compel them to give you a payment plan and allow you to pay your debts over a longer period.

3. Planning your proposal

To be successful in overcoming your debt, you first need to be honest with yourself about your situation. You need to do the math and see how much you can pay off in each instalment. 

Then, you need to communicate this with the ATO in as much detail as possible. As mentioned earlier, the ATO will seek special circumstances that would explain the need for a payment plan, so it is essential to emphasise your unique situation. Provide them with substantive proof if possible. For example, if you have been unable to pay your tax obligations on time due to a reduced turnover as a result of COVID-19, provide bookkeeping evidence and applications for rent relief if applicable.

Although the ATO will generally not seek actions against you if you’ve had a good record with them, they may pressure you to adopt a tighter payment plan. It is essential to be upfront and realistic with what you can afford. If you take on a payment plan you cannot keep up with, the situation will worsen, and they may be able to seek action against your business with justification.


If at some point during your payment plan period, you find that you cannot pay an instalment, contact the ATO before the due date, and you may be able to modify your instalment amount or due date.


Following these steps will ensure that you have the greatest chance of setting up a successful payment plan and overcoming your debt.

If you require further assistance or have any questions, contact us now.

Employers may face a 200% penalty rate + interest for late or unfulfilled superannuation contributions. Although this has been the case for years, the ATO previously had adopted a lenient and forgiving approach. In many cases, where the employer had fulfilled the required contribution past the due date, they walked away with a small 5% or 10% penalty. Furthermore, between 24 May 2018 and 7 September 2020, the ATO provided employers with an Amnesty period, If they voluntary disclosed  liabilities for quarters from 1 July 1992 to 31 March 2018 , they would be exempt from the 200% Super Guarantee Charge (SGC).

As of 25 November 2021, the ATO is guided by the new Practice Statement Law Administration 2021/3 (PS LA 2021/3), which tightened the rules and made it more likely for employers to incur a harsh penalty unless they lodge the Superannuation Guarantee Statement (SGS) in time. 

The penalty system:

As an employer, if you fail to make your required superannuation contributions in full and you do not lodge an SG statement within 28 days after the relevant quarter, you will be liable to a penalty made up of:

• Super Guarantee Charge – 200% of the original amount (on top of the original amount)
• Nominal annual interest which you will accrue until the SGS has been lodged, rather than until you have completed the payments 
• Administration fee of $20 per employee per quarter

The ATO can make penalty remissions so that the SGC is reduced to less than 200%. However, their discretion has been limited through the 4 Step Penalty Remission Process, which caps the available remissions for certain circumstances.

The 4 Step Penalty Remission Process

Step 1: The ATO considers remission based on the employer’s attempt to comply with obligations through making late payments, according to the table below. This guideline did not exist pre-2021.

Late Payments Compliance	Remission	Liable SGC
Late payment in response to ATO compliance action such as audit	10%	180%
Late payment made after initial ATO contact but before compliance action	15%	170%
Late payment 9 months after due date before ATO contact	30%	140%
Late payment 6-9 months after due date before ATO contact	33%	134%
Late payment 3-6 months after due date before ATO contact	36%	128%
Late payment less than 3 months after due date before ATO contact	40%	120%

Step 2: The ATO considers remission based on the employer’s attempt to comply with obligations through lodgement SGS. The table below compares the similar 2021 and 2020 remission limits in this aspect.

SGS compliance	2021 Remission	2020 Remission
Employer has demonstrated repeat disengagement to previous SGC assessments or is engaging in a phoenix arrangement*	0%	0%
Employer failed to lodge SGS or provide relevant information in response to ATO compliance action	25%	25%
Employer gives information after lodgement due date in response to ATO compliance action	40%	40%
Employer lodges SGS in response to ATO compliance action	60%	50%
Employer lodges SGS prior to SGC assessment after due date and initial ATO contact before ATO compliance action	80%	80%
Employer lodges SGS after due date before ATO contact	90%	90%

Note that the remission percentages are added to those from step 1. For example, if, according to step 1, an employer is entitled to a 10% remission for making a late payment in response to ATO action, and they also lodged a SGS in response to ATO action, they would be entitled to an additional 40% remission. That means they would be entitled to a 50% remission and only liable for 100% (50% x 200%) SGC. The exact process occurs through step 3 and 4.

Step 3: The ATO considers remission based on the employer’s compliance history. The ATO considers the employer’s history in the three years leading up to the disclosure or ATO compliance action.

Compliance History	2021 Remission	2020 Remission
Good	15%	No change
Neutral	No change	-5%
Poor	-15%	-10%
Extremely poor	-30%	-10%

Note the greater emphasis on compliance history in 2021. If an employer is found to have extremely poor compliance and they are not entitled to remissions in any other steps, they will be liable for a 260% (200% x 130%) SGC.

Examples of poor compliance include:

• Lodging SGS late
• Not adequately addressing outstanding SGC debt
• Previously issued with SGC default assessment

Examples of extremely poor compliance include:

• Repeatedly failed to meet obligations after multiple ATO compliance actions
• Repeatedly attempted to obstruct or hinder compliance action

Step 4: The ATO considers mitigating factors. The ATO will not consider factors already considered in earlier steps in this step. While the 2020 PS LA did not pose percentage limits and provided broad discretion, the new 2021/3 PS LA categorises mitigating factors under 5%, 10%, 20% and 50%.

Limiting Factors	Remission
Error Honest mistake  Issue is addressed Payment arrangement is entered	5%
Non-compliance occurred in the first year of operation and principals had no previous business experience	10%
Ill health of employer or key employee Significant proportion of superannuation is paid on time Miscalculation due to complex legal interpretative issue Third party compliance issue	20%
Malfunction of key ATO system Natural disaster significantly impacting ability to comply with obligations Misclassifying workers despite reasonable steps to classify them correctly	50%

What can employers do?

Fill out the form as accurately as possible as soon as possible. This will ensure you will no longer accrue unnecessary interest, and it will also increase your chances of reducing SGC.

If you are unhappy with the assessment outcome, you can appeal to the tribunal, which does not necessarily have to follow the practice statement. 

If you have any questions, please contact us.

The tax auditing process can seem to be wildly complicated and daunting. Things may seem even more difficult if you end up needing to dispute results. However, you can set yourself up for a straightforward and successful process by gaining an understanding of how the ATO audit process and disputes operate, and adopting a strategy based on this.

The Audit Process

The ATO’s objective when conducting audits is to ensure that you are complying with Australian tax law. It is therefore a primarily investigative process involving intensive case examinations.

The ATO’s approach is deducing whether you are honest and trustworthy in running your small business. They may ask you questions they already know the answers to, just to verify the accuracy of the information you provide them with. The information they require will vary depending on the scope of the audit and what their unique concerns are, which should be specified during the initial meeting.

Audit Strategy Tips

Avoid giving them a dump of information. Focus on giving them only what is relevant and act genuinely during the investigation process. This will help assure them that you are reliable. 

Avoid making claims unless you are sure that it is accurate. Avoid guessing. Since part of their role is to ascertain whether the information you originally provided them with is accurate, the ATO will test later provided information against earlier provided information.

Keep your calm. If you have given them relevant accurate information, there is no need to feel under pressure during their testing procedures. 

Do not rush them. This could frustrate the process. Allow them to move through their procedure at their own pace. Audits can take a couple of years to complete.

Review your material and understand your position. Since the material is likely to be dense, it is important to make sure it is ordered and accurate. Look out for mistakes and if you find any, make sure to notify the ATO.

The Dispute Process 

If you disagree with a tax audit result, there are multiple possible stages to pursue. The first two are internal with the ATO, and the second two are external statutory procedures outlined in Part IVC of the Tax Administration Act 1953 (Cth).

Stage 1: In-house facilitation. This is the first possible stage of a dispute. After processing your request form, an impartial professionally trained facilitator will meet with you and the auditing team. Their aim will be to identify issues, develop options and attempt to reach a resolution.

Stage 2: Independent Review. Small businesses with a turnover less than $10 million are eligible to request an independent review for a number of tax types including income tax and GST. 

You will need to specify the areas of disagreement. An officer who has not had any prior involvement in your audit will then review all the material and hold a case conference with the audit team. At this case conference, information that was previously provided will be considered. Following this, the reviewer will come to an outcome and prepare written recommendations on each issue in dispute which the audit team will incorporate in the final decision. 

Stage 3: Objection. If you are unhappy with the previous outcome, the next stage would be to lodge an objection. Section 14ZU sets out the requirements. The form must be completed in writing, specifying arguments against the ATO’s finding. It also needs to be within the prescribed period. The Commissioner of Tax will then decide whether to partly allow it, wholly allow it, or disallow it. 

Stage 4: Administrative Appeals Tribunal or Federal Court. If you remain unsatisfied, you can appeal it to either the AAT or the federal court. Generally, at this stage, you will be limited to the grounds you have previously stated. However, your objection will not be read narrowly (Re Confidential and Commissioner of Taxation (2012) 56 AAR 273) and you may seek approval to alter your existing grounds of objection (Gilder v FCT (1991) 22 ATR 872). If you are disputing an assessment, you will need to show that it is inaccurate by showing what it should have been. If you are disputing a decision, you will need to show that it should not have been made, possibly in favour of an alternative. 

By understanding the process and adopting the mentioned strategies early in the process, you will give yourself the best chance of having a successful outcome. The multiple dispute stages can help you achieve a satisfying result, but it is advisable to start off on the right track to minimise uncertainty and costs. 

If you are from outside of Australia and running a website or otherwise sending goods to Australia, you might need to pay Goods and Services Tax (GST).

In the last couple of years (from 1 July 2018) the Australian Government changed the law so that goods worth less than $1000 that are sent to Australia are subject to GST. Since that time, the Australian Taxation Office (ATO) has been sending letters to many websites telling them that they need to pay. A lot of the time the people receiving these letters think that it is spam or a scam of some sort. It isn’t.

Unfortunately, the Australian Government got a bit lazy and decided to impose the tax on the website owner, even if the website owner isn’t the actual seller. Its easier to charge the person collecting the payments than try to collect from each individual seller, which would be a real hassle. Many website owners don’t actually make enough money to cover the GST, which is calculated at 1/11th of the gross payment received.

This means if, on your website, a seller sells a good for $110, you are liable to pay $10 in GST. You might not even recover this in the fees you charge your sellers.

The law is relatively new, so the ATO is taking the approach that everyone just needs to pay it. Time will tell how it pans out in practice.

If you have been contacted by the ATO and want to work out whether you need to pay, or if you want to make sure you are set up correctly so you don’t need to pay (or are covered if you do) then please contact us and we will help you.

Our number is + 61 2 7200 8200 or email me personally at adam@adamahmed.com.au

The ATO has been setting their own policy on the cash flow boost which is different to the law. When the rubber hits the road, the Courts will apply the law instead of the ATO policy (which is not the law). There is hope if you think that you qualify but the ATO policy says otherwise.

We would be happy to help you, feel free to call us on 02 7200 8200 or email at adam@adamahmed.com.au

We also have a template available for you to download if you’d like to have a go yourself.

We’re starting to see people being asked to pay back the Jobkeeper or cash flow boost they received. Often this is after they’ve spent the money, and its putting them in a real bind. But you may not have to, because the ATO is getting the law wrong a lot (because its new, there are some administrative problems with the rollout).

We would be happy to help you, feel free to call us on 02 7200 8200 or email at adam@adamahmed.com.au

We also have a template available for you to download if you’d like to have a go yourself.