NSW RECOVERY PACKAGE
On 21 October 2021, the Premier of NSW, The Hon.Dominic Perrottet MP and Treasurer and Minister for Energy and Environment, The Hon. Matt Kean MP, released a joint statement to announce the launch of a new $2.8 billion package to accelerate recovery in NSW following the three-month lockdown due to the COVID-19 outbreak.The NSW Government’s Economic Recovery Strategy includes funding to stimulate economic activity in cities and regions with a strong focus on rebuilding and supporting businesses, helping the hip pocket and boosting jobs.The Premier and Treasurer also revealed that as part of the package, households of school-aged children in 2021, will receive $250 in vouchers to stimulate spending and economic activity in early 2022.
The NSW Government’s Economic Recovery Strategy includes:
• $500 million to restore consumer and business confidence, including the expansion of Dine &
Discover and Stay & Rediscover accommodation vouchers;
• $250 million to support jobs and skills, including help for job seekers to retrain or upskill;
• $212.2 million to boost vital sectors, including additional funding for the performing arts sector, an Alfresco Restart Package, and
support to bring cities back to life;
• $200 million to boost regional NSW, including support for events, facilities and local infrastructure, and housing; and
• $75 million to boost communities across the state, including support for tourism, events, sport and recreation.
MODERNISING BUSINESS REGISTERS
As part of its Digital Business Plan, the government announced the full implementation of the Modernising Business Registers (MBR) program.
This program will:
• establish the new Australian Business Registry Services (ABRS)
• streamline how you register, view and maintain your business information with government.
The MBR program will establish a new and modern registry service, the ABRS.
The ABRS will:
• progressively roll out between 2021 and 2024
• bring together the Australian Business Register (ABR) and more than 30 Australian Securities and Investments Commission (ASIC) registers in one place
• introduce the director identification number (director ID) initiative.
The ABRS high-level milestones are to:
• establish the foundations for the new registry service
• introduce director identification numbers
• transition the companies register to the new registry service
• transition the business names register to the new registry service
• transition Australian business numbers (ABN) to the new registry service
• transition the professional and historical registers to the new registry service.
The new ABRS is now live and has information on the director ID requirement. From November 2021, you can use the ABRS to apply for your director ID.
Director identification number (director ID) is a new requirement for all company directors, designed to help combat illegal activity by making it easier to trace directors’ relationships with companies. Directors can apply for their director ID from November 2021 on the new Australian Business Registry Services (ABRS).
Details of how and when to apply are on the ABRS website
SUPER STAPLED FUND RULES
New rules are designed to limit the creation of multiple superannuation accounts every time an employee starts a new job. A ‘stapled fund’ is an existing superannuation account which is linked, or ‘stapled’, to an individual employee so that it follows them as they change jobs.
The rules apply only where the employee:
• starts their employment on or after 1 November 2021 (new employee);
• has a stapled fund; and
• has not chosen a fund to receive SG contributions.
In this case, their employer will be required to make SG contributions on behalf of the employee into the stapled fund. Employers can continue to make SG contributions to their preferred default fund for new employees only where:
• the employee has not chosen a fund to receive SG contributions;
• the employer has requested that the Commissioner identify whether the employee has a stapled fund; and
• the Commissioner has notified the employer that there is no stapled fund for the employee.
Any complying superannuation fund of which the new employee is member is broadly an eligible stapled fund. This includes defined benefit funds; however, some defined benefit accounts may not be able to accept contributions from all employers. If a stapled fund request made with the ATO returns a self-managed superannuation fund, the employer should obtain the electronic services address and bank account details from their new employee. If the employee will not supply these details, the employer should contact the ATO.
An employee may have multiple existing eligible superannuation accounts. In this case, the ATO will apply ‘tiebreaker’ rules as outlined in the Super Guarantee Regulations to select the stapled fund.
These rules consider:
• whether the ATO has previously identified a superannuation account as a stapled fund;
• how recently SG contributions have been made to each of the accounts;
• the account balances; and
• how recently each of the accounts was created.
Members who are concerned how the tiebreaker rules will be applied by the ATO should be encouraged to use a superannuation standard choice form to nominate their preferred fund.
COVID-19 DISASTER PAYMENTS
The Federal Treasurer has announced that the temporary COVID-19 Disaster Payment will begin to transition once a State or Territory reaches 70% full vaccination of its population (16 years and older) in line with the movement into Phase B of the National Plan agreed to at National Cabinet. Once a State or Territory reaches a 70% fully vaccinated threshold, the automatic renewal of the temporary payment will end, and individuals will have to reapply each week that a Commonwealth Hotspot remains in place to confirm their eligibility.
TAX-FREE COVID-19 GRANTS
There are two types of government grant and support programs, under which COVID-19 payments to support businesses may be non taxable (NANE).
• state and territory grants relating to the recovery from COVID-19
• Australian Government support payments established under the COVID-19 Business Assistance Program.
The NSW state grants that are tax-free are:
• 2021 COVID-19 business grant
• 2021 COVID-19 JobSaver payment
• 2021 COVID-19 micro-business grant
• NSW Performing Arts COVID Support Package
LEGAL PROFESSIONAL PRIVILEGE
The Commissioner of Taxation (the Commissioner) has considerable powers to obtain information to help the Australian Taxation Office (ATO) administer the tax laws. One such power is s 353-10 of Schedule 1 to the Taxation Administration Act 1953 (TAA), which allows the Commissioner to request, among other things, a person provide information, give information in person and/or produce documents they have or control.
There Commissioner’s powers have limits. One such limit is the doctrine of legal professional privilege (LPP). In broad terms, LPP protects written (and oral) communications between a legal adviser and their client where the dominant purpose of the communications is legal advice or litigation where litigation is taking place or is reasonably anticipated at the time the communication was made. A case was recently decided by the Full Federal Court in CUB Australia Holding Pty Ltd v Commissioner of
Taxation  FCAFC 171 on the matter of LPP. The Full Federal Court’s judgment in favour of theATO in the case highlights the distinction between the Commissioner determining whether an LPP claim is valid, which is outside the Commissioner’s power, and determining whether to accept or challenge an LPP claim which is permitted as was allowed in the case. The decision confirms the Commissioner’s power to seek from a taxpayer sufficiently descriptive information to assist the Commissioner to determine whether to accept or challenge the taxpayer’s LPP claim(s). It does not in any way change or curtails taxpayers’ rights to LPP.
VARYING PAYG INSTALMENTS
Due to the ongoing impacts and economic uncertainty of the COVID-19 pandemic, the ATO will not apply penalties and interest on varied instalments that relate to 2021–22 income year, if you have taken reasonable care to estimate your end of year tax liability.
This means you will need to have made a reasonable and genuine attempt to determine your liability. When considering if a genuine attempt has been made, the ATO will take into account what a reasonable person would have done in your circumstances.
This will apply to 30 June ordinary balancers for the 2021–22 income year and entities that have been granted a substituted accounting period (SAP). For an entity with a SAP, any variation must relate to instalments made during your 2021–22 income year.
PRIMARY PRODUCTION CASE
In a recent NSW Court of Appeal case, Chief Commissioner of State Revenue v McIntosh Bros Pty Ltd (in liq)  NSWCA 221, the central issue was whether land used independently by four or more persons for primary production purposes was exempt from NSW land tax. The NSW Court of Appeal held the land was exempt.
A dairy farm at Cobbity, NSW, had been owned by the McIntosh family since 1868. It was transferred to McIntosh Bros Pty Ltd (the Company) in 1931. In 1987, when the Company was placed into voluntary liquidation, the land was informally divided into two parts. The Denbigh (west) side was controlled by Jim McIntosh and his family and the Bangor (east) side was controlled by Ron McIntosh and his family.
On the Denbigh side, Jim McIntosh’s son, Ian, grazed his own cattle and agisted the cattle of third parties, including a nearby dairy farmer. On the Bangor side, Ron McIntosh and his son, Richard, conducted a beef cattle operation and Jim Head ran a cattle grazing business.
The Company was assessed for land tax for the 2014 to 2016 calendar years. However, the NSW Civil and Administrative Tribunal (the Tribunal) determined that the primary production exemption in s 10AA(2) of the Land Tax Management Act 1956 (NSW) applied because:
• the dominant use of the land was for primary production;
• that use had a significant and substantial commercial purpose or character; and
• that use was engaged in for the purpose of profit.
The land was not zoned as ‘rural land’ and therefore the exemption for rural land (under s 10AA(1)) did not apply.
The Court agreed with the Tribunal that, although there were four or more independent uses of the land by different persons or entities, each use was a primary production use and that those various primary production uses could be aggregated or consolidated and weighed against the non-primary production uses which in this case was minimal. As a result, the dominant use of the land was for primary production.
The Court also agreed that the commerciality and purpose of profit tests in s 10AA(2) were satisfied, taking account of the several activities undertaken on both the Denbigh and Bangor sides of the land (with the exception of two minor agistees).