Protect your business from scrutiny: The importance of professional advice in corporate restructures
Seeking professional advice during these proceedings is essential, as experts can help navigate the complexities of Capital Gains Tax (CGT) concessions and maximise available tax benefits while staying compliant, reducing the risk of penalties and optimising your financial outcomes.
Penalties
When you engage in financial transactions, particularly with related parties, it's crucial to ensure the values you report on your tax return are accurate and on the appropriate basis. The ATO pays close attention to these transactions, and any suspected false or misleading statements can lead to penalties. The penalties for misleading statements often include statements that exhibit a perceived shortfall amount.
For statements that exhibit a shortfall amount, the ATO categorises these penalties based on the nature of the error by you or your tax agent: 25% of the shortfall amount for failing to take reasonable care, 50% for recklessness, and 75% for intentional disregard of tax laws. This means that the more severe the error, the higher the penalty will be. For entities that exhibit worldwide consolidated revenue of $1 billion or more, the penalties can double. For full details pertaining to these penalties, visit here.
Corporate restructure transactions are often scrutinised by the ATO in the form of the market value substitution rule, which can occur when the actual capital proceeds are deemed less than the market value of the assets due to the parties not dealing with each other at arm’s length. This rule allows the ATO to substitute a higher market value for the actual sale price if it believes the parties did not genuinely negotiate the sale terms, which creates a financial risk to you and your business.
Safe harbour rule
There are instances where penalties might be reduced or even waived. If you made an honest mistake despite taking reasonable care, such as misunderstanding a complex tax rule, the ATO might reduce the penalty. Additionally, if your tax agent made the error and you provided all necessary information accurately, you might qualify for safe harbour provisions, which can shield you from penalties.
One recent case, relating to the Moloney Case, illustrates just how crucial it is for business owners to obtain professional advice, not only to recognise your tax position through a thorough and accurate valuation, but also to mitigate risks and avoid leaving critical decisions up to the ATO or courts. A significant part of this case hinged on whether the parties involved in a share sale agreement dealt with each other at arm’s length. The ATO argued that the market value substitution rule should apply, suggesting that the actual capital proceeds from the sale were less than the market value of the assets because the parties did not deal at arm’s length. While the Moloney’s argued, the judge ultimately agreed with the ATO that the parties did not deal at arm’s length, which is an important point.
Despite the family losing the arm’s length portion of the dispute, there was a silver lining: the ATO did not impose any of the administrative penalties mentioned. They acknowledged the safe harbor rule, as the family had undertaken the appropriate professional advice, waiving the penalties that would have otherwise been applied. This again highlights just how crucial it is to get professional advice, especially when dealing with transactions between related parties where the market value substitution rule might apply.
How Forvis Mazars can help
If you are a business owner undertaking a corporate restructure or facing a transaction which could be perceived as non-arm’s length, this is our recommendation : Make sure you seek advice and get a professional valuation done. It might save you significant pain.
Our Financial Advisory team at Forvis Mazars specialise in providing these professional valuations, giving you the confidence and security to navigate any financial challenge. If you are a business owner looking for an accurate and comprehensive valuation to protect your interests, especially against ATO scrutiny, we can assist.
Recent examples of how the Forvis Mazars valuations team has worked with tax advisors to support client outcomes include:
- Valuation of multiple stores within a food franchise business in preparation for a corporate restructure. This valuation was crucial for accurately determining the business' worth, which supported both the calculation of capital gains tax payable and supported the application of various CGT discounts during the formation of a tax consolidated group.
- Valuation of a wholesale supplies business to facilitate the capital gains tax assessment for a family member's exit from the business. This valuation was essential in ensuring an accurate determination of the business's worth, which supported the equitable calculation of capital gains tax and provided clarity and fairness in the financial transition process.
- Valuation of a full-service swimming pool construction company for the purpose of internal restructure between entities, supporting the tax returns lodged with the ATO, and
- Valuation of a boutique cosmetic medicine clinic, originally in a Trust structure, moving towards a Company structure, to name a few.
Contact your usual Forvis Mazars advisor or alternatively one of our Financial Advisory specialists via the form below or on:
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Author: Marcus Cutuli
Published: 27/08/2024
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