In the development of this submission, we have closely consulted with our National Small and Medium Enterprises Technical Committee and National Taxation of Individuals Committee to prepare a considered response which represents the views of the broader membership of The Tax Institute.
Historically, the ATO has provided very limited guidance on the application of section 100A of the Income Tax Assessment Act 1936 (ITAA 1936) to assist taxpayers. Instead, taxpayers and tax professionals have had to rely on limited case law and ATO practices that set the perceived boundaries and scope of section 100A. While the provision has been in effect for more than 40 years, most practitioners have had minimal exposure to section 100A and have not seen it applied in practice beyond the more egregious arrangements in the handful of cases that have come before the courts.
Although the community will generally benefit from comprehensive guidance on this topic, The Tax Institute is of the view that significant changes need to be made to ensure the draft Ruling is effective at explaining the operation of section 100A. In particular, we consider that the draft Ruling should acknowledge the threshold requirements to enliven the operation of section 100A. The draft Ruling primarily focuses on the 'ordinary family and commercial dealing' exception, which, of itself, is insufficient to provide the relevant clarity and is causing more confusion. The draft Ruling must be supported by general education of the community and the tax profession, and by the ATO highlighting all the requirements of section 100A.