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.

A lot of people have had trouble getting their cash flow boost. When they finally do, the ATO sometimes changes its mind and asks them to pay it back. Its happening now.

Here is a video on what you can do if the ATO wants you to pay the cash flow boost back.

We have a template available if you need to object to an ATO decision to deny the cash flow boost https://knowthelaw.com.au/product/cash-flow-boost-review-or-objection-template/

Feel free to contact us: 02 7200 8200

Has a neighbour approached you with a request that you agree to grant an easement, perhaps to run drainage through or drive over, over your land? If so, it is essential that know what your rights are, now and into the future.

Your $$$$$$ compensation

In most instances, you have right to be compensated for an easement imposed over your land. The compensation amount is usually either agreed with party requesting the easement or ordered by the Court. The amount will vary depending on several things which may include the needs of the party requesting the easement, the amount of an expert’s valuation of the impact of the easement, the nature of the easement granted and your or your solicitor’s negotiation skills.

Your right to compensation is reflected by section 88K (4) of the Conveyancing Act 1919 which provides that if the Court makes an order imposing an easement over land that it also provide in the order an amount for compensation to the land owner unless there may be special circumstances.

Your legal costs paid

It is very important to seek legal advice regarding a potential easement over your land and ensure your rights are properly protected during the process to agree to grant the easement, the construction of the easement and into the future.

It is common practice for developers (or people requesting the easement) to agree to pay your legal fees.  We have a template below to request this.

If you agree to grant the easement without the need for Court proceedings, we recommend you enter into a Deed with the neighbour that includes a provision that all your legal costs of and associated with the granting of the easement are paid by the neighbour. This ensures your neighbour pays your legal costs and you are not out of pocket.

If the dispute ends up in Court, perhaps because the amount of compensation cannot be agreed or the neighbour has not been reasonable, section 88K (5) of the Conveyancing Act 1919 provides that the costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.

Ongoing maintenance of the easement

Many easements require ongoing maintenance either on a regular basis, or perhaps in 10 years when the piping under the ground may need fixing. Provision for ongoing maintenance is best included in the Transfer Granting Easement, which is the document that provides permission from a land owner for an easement to be created over their land.

We recommend you enter into a Deed with the neighbour which includes a provision that ensures either the current owner or future owners of the land benefited by the easement keep the easement in good repair and working order. This type of provision may save you many thousands of dollars down the track.

Protection from any liability

There will often be construction works associated with the easement and it is important you are protected should there be an accident such as a person being hit by a falling fence or a child falling into a hole on your land.

We recommend you enter into a Deed with the neighbour which includes a provision that ensures you are indemnified against any liability, loss, claim or proceeding arising out of the construction works associated with the easement.

What to do next?

No matter at what stage of the granting an easement process you may be, you will benefit from obtaining legal advice to assist you in achieving the maximum amount of compensation payable and ensuring your rights are properly protected now and into the future.

Feel free to ask us any question you may have and we look forward to helping you – 02 7200 8200 or adam@adam-ahmed-8613

Top tax lawyer gives 3 tips on what to do if your cash flow boost has been refused or isn’t coming through:

Hope this video helps. Best of luck!

Contact number is 02 7200 8200 and email is adam@adamahmed.com.au if you need it