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Distributable surplus
The purpose of Division 7A is to punish companies for making disguised distributions of profit to shareholders and their associates (especially family members). The distribution of profit ordinarily results in the profit being taxed at company level, and then franked for the tax paid at company level, before being taxed at the marginal tax rate to the individual.
Because Division 7A is targeted at disguised distributions of profit, it only deems payments to be dividends to the extent that the private company’s distributable surplus exceeds or equals the company’s total deemed dividends for that income year. The distributable surplus is in effect the profit of the company that could be distributed that income year.
Effect of the Taxation Determination
There are rules to ensure that the company’s distributable surplus accurately represents what the company has to distribute. The distributable surplus is the amount by which the company’s assets, according to the company’s accounting records, exceed the sum of:
•the present legal obligations of the company to other persons;
•provisions made for depreciation, long service leave, annual leave, amortisation of intellectual property and trademarks, and other provisions described under regulation.
Taxation Determination TD 2012/10, finalised on 6 June 2012, emphasises that “distributable surplus” is not to be confused with “book profits”. Note that only the sum of the company’s assets is ascertained according to the company’s books. The obligations and provisions are ascertained objectively.
“Present legal obligations” includes tax amounts. TD 2012/10 focused on when tax amounts can be included as present legal obligations. In short, the Commissioner determined that:
•a company which has to pay PAYG instalments for that income year, but which has not actually paid some of an instalment as of the end of that income year, can treat the whole unpaid instalments as a “present legal obligation”;
•a company which lodges an income tax return, and therefore is deemed to be assessed on the amount disclosed therein on the day of lodgment, is taken to have a “present legal obligation” from the last day of the relevant income year, even if lodgment does not occur until thereafter; and
•if the Commissioner issues the company with an amended assessment under which the company has to pay an amount, that amount will again be taken to be a “present legal obligation” in the year being assessed, not the year when the amended assessment was received.
These principles make it a lot clearer what tax amounts can be used to reduce the company’s distributable surplus. As can be seen, they are generally quite favourable to the target company. Division 7A penalties may also apply to company directors who were in charge when the offence was committed.
Example: Amended assessment
A certain company, X Co, decides that it wants to pass a large amount of profit to its shareholder, Y. X Co has received $100,000 in income. Therefore, X Co pays Y $100,000 on 13 September 2007.
However, in its income tax return for 2008 year, X Co only reports income of $50,000. It pays $15,000 in income tax.
In 2011 year, the Commissioner audits X Co. He notices the payment to Y and deems the payment to be a dividend. He also issues an amended assessment to X Co for the unreported extra $50,000. X Co becomes liable to an extra $15,000 in tax.
In calculating the deemed dividend paid to Y, X Co’s amended assessment is included when reducing its distributable surplus for 2008 year, even though the amended assessment was only issued in 2011 year. Therefore, the full $30,000 tax that X Co should have paid in 2008 year is used to reduce X Co’s distributable surplus.
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