Daily Update – 18 January 2022

No Jobkeeper entitlement – previous employee nomination
The AAT has ruled that a taxpayer who was both an employee and sole trader could not qualify for JobKeeper payments as a “business participant” as she had previously given a nomination notice to her employer for Jobkeeper payments as an employee. This was despite the cessation of her Jobkeeper payments as an employee following her “withdrawal” of her nomination notice.  However, the AAT found that the Jobkeeper rules did not permit the withdrawal of a nomination notice. (DGSC and FCT [2021] AATA 4816, 24 December 2021).

Super: ASIC warning SMSFs and crypto-currencies
ASIC has warned that it has noticed an increase in marketing recommending Australians switch from retail and industry superannuation funds to SMSFs so they can invest in a “high return” portfolio – especially cryptocurrencies. It has stated that crypto-assets are a high risk and speculative investment. As a result, ASIC is reminding superannuation fund members it is best practice to seek advice from a licensed financial adviser before agreeing to transfer superannuation out of a regulated fund into an SMSF.

McDonald’s conviction for failure to comply
McDonald’s Australia has been convicted and fined for failing to provide documents to the ATO. In 2019, the ATO issued a formal notice requiring McDonald’s Australia to produce documents with a compliance date of 30 August 2019. However, despite continued engagement with McDonald’s Australia to obtain the information and resolve the matter, the documents were not provided by the compliance date. The matter was subsequently referred for prosecution by the Commonwealth Director of Public Prosecutions, which saw McDonald’s Australia plead guilty to one count of failing to comply with an information gathering notice. The ATO says the outcome serves as a reminder to all taxpayers to be open and transparent in their dealings with the ATO.

Super: Assets not held by SMSF – available to creditors
The Federal Court has ruled that certain assets of two undischarged bankrupts were not held in their SMSF and were therefore divisible among the creditors of their bankrupt estates. They sought to rely on s 116(2)(d)(iii)(A) of the Bankruptcy Act 1966 which provides an exception to assets available to creditors for “the interest of the bankrupt in…a regulated superannuation fund”. However, the court determined that they failed to show that the disputed assets were held on the terms of the SMSF for the beneficiaries of the SMSF. (Frigger v Trenfield (No 10) [2021] FCA 1500, 1 December 2021.) Comment: This case therefore provides some important lessons for SMSF trustees on the importance of keeping records of SMSF assets and maintaining compliance for the fund.

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