ATO provides guidelines on Professional Practices and Tax Avoidance – is your practice affected?

In many years of specialising in the medical industry, we have seen a great deal of confusion in the industry regarding the taxation of income generated by practitioners through their practices.

In particular, where a medical practitioner owns the practice and is involved in its management, many have been tempted by the suggestion that they can greatly reduce their own income tax by not remunerating themselves on market terms for the work done, on the basis that they are owners.

Our view on this matter has always been that if it sounds too good to be true, it usually is! That is, the practitioner must be remunerated on a commercial basis for the work that they perform with patients and the remaining business profits can then be allocated between their family members tax effectively.

The Tax Office has now issued long awaited guidelines confirming this view and setting out its intention to undertake an audit program to find those who do not comply.

In the interests of demystifying what this may mean for your practice, let’s revisit the background and then discuss the essence of the ATO guidelines.

Background

Generally, when you are a practice owner, there are two types of income that you will earn through your business. The first is income generated from seeing patients and working day to day in the practice. The second is income generated from the business itself – predominantly through the efforts of other doctors and employees.

The general tax principles are that for the income that you generate from your own efforts, you must pay the tax on this income personally (irrespective of the business structures in place to receive this income). In simple terms, if you do the work, you pay the tax.

On the other hand, for profits generated by the wider practice, these will be taxed depending on how you own your interest in the practice, that is, either in your own name, through a trust or company (or a combination of these). In simple terms, if you own the asset, you pay the tax.

The point of confusion comes where some practitioners seek to maximise the business profits that can be shared with family members through trust or company arrangements, by minimising the level of personal remuneration for personal work they perform. Many argue that although they see patients in the practice, the real “value” they provide is the management of the practice, which is remunerated at a lower rate.

It has always been our view that you must pay tax on a commercial basis for the services that you provide. For example, if you see patients within your practice and other doctors that contract to you are remunerated, at say, 65% of patient billings, your commercial remuneration for patient work is also 65%. All other profits can then be distributed amongst your family members.

ATO Guidelines – What is their view?

On 2 September 2014, the ATO issued guidelines entitled “Assessing the risk: allocation of profits within professional firms”. They have stated that these guidelines apply to all professional firms, including the medical industry.

Within the guidelines, the ATO expressed concern about arrangements where the practitioner is not directly rewarded for the services they provide to the business, or receives a reward which is substantially less that the value of those services. In addition they also expressed the view that they consider the general anti-avoidance provisions in the Tax Act have potential application where the “practitioner arranges for the distribution of business profits or income to associates without regard to the value of the services the individual practitioner has provided to the business”.

ATO Guidelines – What is the risk?

The ATO have indicated that they will begin audit compliance activity in the 2014-15 financial years. They indicate that they will undertake audit activity on arrangements they consider high risk and do not meet one of the following guidelines:

1. The practitioner is personally assessable at an appropriate rate. The ATO states that a practice may set the rate based on the level of remuneration paid to the highest band of professionals providing equivalent services in the firm; and/or

2. 50% or more of the income to which the practitioner and their associated entities are collectively entitled to is assessable in the hands of the practitioner; and/or

3. The practitioner and their associated entities both have an effective tax rate of 30% or higher on the income received from the firm.

What do you need to do?

With the issue of these guidelines, there is now clarity on how the ATO will approach the taxation of the different types of income you will generate from your practice. In addition, the ATO has effectively given notice that if your affairs are not compliant with the risk factors outlined, you are at high risk of undergoing an ATO audit on this area.

On this basis, we strongly recommend that you review your structures and taxation with your accountant or consider a second opinion to ensure that you are appropriately dealing with the taxation of the income generated from services that you provide to your practice and your patients.

 

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