ATO to issue guidance on ‘high-risk’ arrangements

“We observed a variety of arrangements exhibiting high-risk factors not specifically addressed within the guidelines, including the use of related-party financing and self-managed super funds,” the Tax Office said.

After suspending the guidelines, the ATO said it has consulted with professionals across the market to ensure its draft guidance appropriately reflects the environment.

“Consultation has been ongoing since early 2018, with a view to publishing new guidance,” it said.

One area of concern for the ATO is arrangements “undertaking an assignment to dispose of an equity interest to an SMSF”, it said.

It is also concerned by arrangements lacking any meaningful commercial purpose such as the disposal of an equity interest through multiple assignments, the creation of new discretionary entitlements such as dividend access shares and utilising amortisation leading to differences between tax and accounting income.

Other arrangements on its radar include those with a disregard for CGT consequences and inappropriate use of CGT concessions, assignments where profit sharing is not directly proportionate to the equity interest held, and the creation of artificial debt deductions.

The ATO stated that taxpayers who have entered into arrangements prior to 14 December 2017 can continue to rely on the suspended guidelines for the year ending 30 June 2020 as long as their arrangement complies with the suspended guidelines, is commercially driven and does not exhibit any high-risk factors.

“Where these conditions are satisfied, they will be considered lower risk for the year ended 30 June 2020,” it said.

“Where individual professional practitioners are contemplating new arrangements, or have concerns or uncertainty regarding potential high-risk factors within their current arrangements, they are encouraged to engage with us as soon as possible.”