Businesses that have applied for the JobKeeper now have some certainty on the integrity provision contained in the legislation. The ATO has released details of its administrative approach, in particular when it will apply compliance resources to investigate whether there has been breaches of the law. In general, it notes that it would only apply resources to what it terms “schemes”, the determination of which would depend on individual circumstances. Where the ATO determines there has been a scheme, it has powers to claw-back payments and impose significant penalties.
The ATO has released its practical administrative approach to businesses claiming the JobKeeper payment. Generally, it notes that it would only apply compliance resources to what would amount to a “scheme” in terms of the entity and its external operating environment. For example, if an entity’s business has not been significantly affected by external environmental factors beyond its control and/or the payments are in excess of those that would maintain pre-existing employment relationships.
The integrity measure contained in the JobKeeper payment legislation ensures entities that enter into contrived schemes do not obtain a payment they would otherwise not be entitled to. It is aimed at contrived and artificial arrangements that technically satisfy the eligibility requirements but have been implemented for the sole or dominant purpose of accessing the JobKeeper payment.
Where that is the case, the ATO has the power to determine these entities were never entitled to the payment. In addition, it will also be able to recover any overpayments and has the power to impose significant penalties and interest.
To determine whether or not a certain arrangement is a “scheme”, the ATO will largely consider the substance of the outcome achieved rather than the type of arrangement entered into. However, it may also consider a range of factors including:
- the manner which the scheme was entered into or carried out;
- the form and substance of the scheme;
- the time at which the scheme was entered into and the length of the period during which the scheme was carried out;
- the result that would have been achieved by the scheme;
- changes in financial position of the entity or connected persons as a result of the payment;
- other consequences for the entity or connected persons of the scheme having been entered into;
- nature of connection between the entity and any connected persons.
According to the ATO, some examples of schemes to obtain the JobKeeper payment which may pique its interest include:
- company deferring the making of supplies/payments of cash/issuing of invoices to third parties to lower the projected GST turnover in order to meet the decline in turnover threshold;
- company bringing forward the making of supplies to artificially lower the GST turnover in a particular quarter to obtain the JobKeeper payment;
- company transferring assets that are leased to third parties to a related party to reduce GST turnover;
- a group of entities in which the service company reduces the service fee charged to the operating company to meet the decline in turnover test (depending on the circumstances of the reduction);
- a group of entities in which the service company stands down employees/reduces their work hours to the operating company resulting in reduced service fees to meet the decline in turnover test;
- parent company of a corporate group that reduces management fees or manipulates the timing of the management fee.
Whilst it is not an exhaustive list, it does provide a useful guide in what the ATO considers to be a scheme. In particular, there are two examples which points out that a reduced service fee within a group of companies does not necessarily mean that there has been a scheme. From the ATO’s point of view where an entity has been significantly affected by the external operating environment that is beyond their control and applies for the JobKeeper payment in response to the impact (satisfying the criteria), it is unlikely to devote compliance resources to those cases.
If you liked the sound of the JobKeeper but are now not sure due to the complexity involved, we can help you navigate through the requirements and get a much-needed cash injection. If you’ve already applied for the JobKeeper but are not sure whether this compliance action could be inadvertently directed towards your business, we can help. Contact us today.