Cloud computing costs are now PIC-able

On Deepavali Day, I received a very pleasant surprise.

I just read that Cloud Computing Costs are not only tax-deductible (which we know) as business expenses, they now qualify for additional deduction under Productivity & Innovation Credit.

An example cited in ST’s news article – “word processing that exist online rather than on individual computers”. A $100 expense would qualify for up to $400 deduction against your income (subject to meeting other terms and conditions.)

Christmas present?

Important terms and conditions to note before we jump for joy are:-
1. spent on qualifying expenditure and are entitled to PIC during the time period concerned
2. active business operations in Singapore
3. at least 3 local employees at the VERY last month of the qualifying time period

(Who are the 3 employees? INCLUDING Singaporeans & PRs but EXCLUDING sole proprietors, partners under contract for service and shareholders who are directors of company)

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When do your business need to register for GST under new rules?

Under the new GST – Time of Supply Rules effective Jan 1, 2011, there is no more prospective and retrospective test that we used to do.

Under the new law, the time of supply for most transactions will be triggered by the earlier of the following two events:-
a) when payment in respect of the supply is received; and
b) when invoice in respect of the supply is issued.

Consequently the rules to determine when a business need to register for GST would have to change too.

Suppose Company performed and completed only 2 transactions in the year 2011. Each transaction is $600,000.

One transaction has been invoiced and paid. The other transaction, while completed, has NOT been invoiced nor paid as at Dec 31, 2011.

The value of supply made in 2011 under the new rules is only $600,000/-. Therefore company’s liability to register has not yet arisen on Jan 1, 2012.

Taxman overruled again!!

The Court of Appeal overrules IRAS again, twice over the last two months.

What is the issue?
Are portable dormitories considered “plants” as per plaintiff being in the business of providing dormitory services or “buildings” as per IRAS?

At a total cost of $2.6 million, the plaintiff had built and operated 6 blocks of three-storey container-like as temporary workers’ accommodation and administrative use within an industrial estate. Each block was made of “steel beams held by nuts and bolts while panels were inserted within this steel framework to form walls. “The floor was made of timber and each dormitory was topped with a metal roof”.

Decision and Basis
IRAS has been told by the Court of Appeal to treat such portable dormitories as “plants”.

The three-judge court led by CJ Chan Sek Keong overruled the earlier decisions of Income Tax Review Board and the High Court and defined such assets as “plant” on the following criteria:-

  • built on prefabricated materials
  • could be dismantled and moved elsewhere within 90 days’ notice

The Court of Appeal concluded that the definition of plant would depend on “its exact operational role in the taxpayer’s business, its characteristics and the precise factual matrix and context concerned”.

Leung Yew Kwong and Tan Shao Tong from WongPartnership, lawyers for the Plaintiff, had argued that their client’s business of providing dormitory service involved moving and reusing such assets in other sites in the future. [The same team from the same law firm won in the Nov 2010’s case.]

IRAS’ lawyers, Irving Aw and Quek Hui Ling, had relied on past rulings of similar situations. They cited a specific example where circus tents functioned as premises and would not qualify as plants.

To the plaintiff, the decision could now claim for tax relief and secure “a tax savings of at least $500,000 based on 2004 tax rates”.

In my humble opinion, it is a difficult issue for IRAS as acknowledged by Judge of Appeal Andrew Phang. The law does not provide the definition of “plant” (as such words from my tax lecturer still echo in my head after years) and the three-judge court had to dwell on its precise definition in arriving at the decision.

Source – K.C. Vijayan, “Court of Appeal overrules taxman”, The Straits Times, Dec 18, 2010.

Court overrules tax authority

can you pick up customers in yellow box?

What is the issue in dispute?
The company is in the business of leasing aircrafts. The company has subsidiary firms in Cayman Island. The subsidiary firms bought aircrafts with loans pegged to floating interest rates. The aircrafts are rented out to airlines on fixed rental rates.

The subsidiary firms are supposed to use the rental proceeds to service the interest obligations. Often, the firms face revenue shortfall to meet those obligations.

The Singapore parent then entered into interest rate swap arrangements with banks in Singapore to hedge against the risk of floating interest rates on behalf of its subsidiaries. During the 17-month period from October 2006, the Singapore parent company made payments to its subsidiaries overseas as part of interest rate swap arrangements. 

IRAS’s position

  • IRAS has taken the position that these interest payments overseas are subject to withholding tax under provisions dealing with loans borne by the parent firm.
  • The Comptroller argued that such broad interpretation of the relevant section for such payments to be taxable has been accepted by tax advisers, practitioners and businesses in the past.

P/S – The name of legal counsel representing IRAS was not mentioned by K.C. Vijayan, the ST law correspondent.

The Singapore parent’s position

  • The tax authority has taken a too broad an interpretation of the law.
  • Such braod interpretation may actually discourage foreign investors from doing business in Singapore.

P/S – Leung Yew Kwong / Tan Shao Tong from WongPartnership represented the plaintiff.

High Court – Justice Andrew Ang
The Court ruled in favour of the Singapore parent on the following grounds:-

  • interest rate swap payments are not subject to withholding tax under s12(6)(a) of Income Tax Act
  • the payments were not in relation to any loan borne by the firm here
  • IRAS has taken a too broad an interpretation of the law
  • past acceptances by tax advisers, practitioners etc should not be cited to justify an interpretation of the law

The ruling would mean that the Comptroller of Income would have to make substantial refund and pay costs to the Singapore company. The costs to IRAS could go higher when business entities which were involved in similar situations and had paid the taxes may now seek a review with IRAS given the ruling.

Reference – K.C Vijayan, “Court overrules taxman, orders refund for firm”, Straits Times, Nov 6, 2010.

What can I do with trade loss, unabsorbed capital allowance and donations?

I have summarised the article by Mr Clement Tan Kai Guan entitled “Order of Claiming Qualifying Deductions – Maximising Tax Benefits” published in Singapore Accountant, June 2010.

Question – When a taxpayer incurs a trade loss for the current year and has current year unabsorbed Capital Allowances (CA) and approved donations, what options does he have with regard to the utilisation of these qualifying deductions?

Answer

1. Prior to YA2003, you can ONLY carry forward the current year unabsorbed CA, losses and donations for setoff against his future years’ taxable profits.

2. With effect from YA2003, group relief option was introduced.
Loss making Singapore incorporated companies are allowed to transfer their current year qualifying deductions to other profitable member companies of the same group.

3. From YA2006, the carry-back clause was introduced.
Any person carrying on a trade, business, profession or vocation may carry back his current year unabsorbed CA and losses, subject to a maximum of $100,000, for setoff against his Assessable Income (AI) for the immediate preceding year of assessment.
Note – Donations cannot be carried back under the loss carry-back option.
(Edgar – In the case of carry-back, there is the possibility of tax refund by IRAS on tax paid on previous year’s profit.)

4. In February 2009, the carry-back option was enhanced.
The amount allowed to be carried back is increased to to $200,000 and extending the period of
carry-back from the current 1-year period to a 3-year period.
The enhanced carry-back relief system is only applicable to unabsorbed CA and unabsorbed losses relating to the YA2009 and YA2010.

Rule – Which to apply first?
Group relief first, then carry-back and carry-forward.
CA first, then trade loss.

– Transferred out CA to group companies
– Then transferred out trade loss to group companies
– Lastly transferred out Approved Donations to group companies” height
– Assume Company A first, the Company B
– Any leftovers from Group Relief, then Carry-back.
– Any leftovers from Carry-back, then Carry forward.

Clement made a simple but interesting observation.
He asked us to ensure that the trade loss be used to offset profit before exemption in excess of $300,000 first, if possible. This is due to the partial exemption.

Example – For YA2009 (ie. 18% tax rate), we have Company A with $200,000 profit and Company B with $380,000 profit. Both companies have $80,000 trade loss carried forward. Compare tax payable before and after applying the trade loss of $80,000 for the two companies.

  • Company A to pay $10,350 after deducting trade loss or pays $17,550 without deducting trade loss. The trade loss of $80,000 would save $7,200 for Company A.
  • Company B to pay $26,550 after deducting trade loss or pays $40,950 without deducting trade loss. The trade loss of $80,000 would save $14,400 for Company B.

Moral of story – use the deductions for entity with profit in excess of $300,000 in the current year of assessment or keep for use in future years instead.

Lessons from Raffles Town Club’s appeal

nearing completion?

In yesterday’s Today, it was reported that Raffles Town Club (RTC) has lost its arguments in the Court of Appeal on the following:-

  • failed to obtain tax deductions for the costs involved in leasing its land and in constructing the clubhouse on the ground that $108 million cost of acquiring the land from the State and the $91.4 million incurred in building the clubhouse were capital in nature and therefore
    not eligible for tax deduction;
  • secondly, it failed to have its membership fees taxed over 30 years, the life span of the club (this is an interesting attempt in defining the timing of revenue recognition and consequently, timing of taxability);
  • thirdly, it failed to secure relief for YA2001 from the tax department for the $53.28 million in damages it had to pay members after it lost the 2005 class action suit filed by several thousand members who claimed the club had falsely led them to believe they were part of an exclusive establishment and;
  • lastly, it failed to secure tax deductibility for the $2.34 million that RTC paid for geomancy fees.

Consequently, RTC is liable to pay tax for the Years of Assessment 1998-2003 on the full amount of $526.14 million it collected from its 19,000-odd members who had paid $28,000 each to join.

I have quoted verbatim the learning points from Justice Phang’s concluding remarks:-

  • “Where ordinary accounting principles run counter to the principles of tax law, they must yield to the latter for the purposes of computing gains and profits for tax.”
  • “Accounting and tax have different objectives in mind. Financial accounting is intended to provide information regarding firm performance to the market place while taxable income is prescribed by the government to meet budgetary needs … Regardless of how persuasive accounting evidence is, the prerogative still lies with the court to decide whether a particular item should be regarded as income that has accrued for the purposes of liability to tax.”
  • He pointed out that while accounting treatment focuses on the balance sheet, “taxation requirements are centred on the profit and loss accounts, so that the distinctions between revenue and capital, which are vital for tax purposes, may be lost in the accounting treatment”.
  • Concluding, he said: “I am also of the view that the present case turns on how well-established tax principles and tax law would apply rather than on the correct treatment of the items brought to tax.”

Gan Oh Boon and Tax Exemption Scheme

A businessman, Gan Oh Boon, warmly embraced the idea from Chng Chor Tong, his auditor, of spreading the profits from his steel forming and rolling business over 6 new companies set up in 2004.

Law – The law exempts new companies from paying tax on the first $100,000 of chargeable income and partially exempted for the next $200,000.

Modus operandi
Company A signs management agreement with each of the 6 shell companies. The profit from Company A is evenly distributed to 6 companies by fictitious expenses (valued $1,6mio) with no work or services performed by the 6 shell companies for Company A.

The fictitious expenses were “correctly named” and comprised of commission fees, technical consultancy fees, marketing consultancy fees, engineering consultancy fees and management fees.

The said fees were for the work and services purportedly performed by the 6 shell companies. Even though these fees were reported as income by the respective shell company, the overall tax burden has been reduced substantially for the Years of Assessment (YA) 2005 to 2007.

What went wrong for Mr Gan in applying the law?
The tax exemption scheme under section 43(6A) of the Income Tax Act, which took effect from YA 2005, was introduced to support entrepreneurship and encourage growth of local enterprises.

But in my humble interpretation, the 6 shell companies are basically shells with no independent employees and resources carrying out its own economic activities.

You can’t just create companies to distribute the profits around!!!

What are the punishments?

  • For the company, a fine of $24,000 and a penalty of $988,933.58.
  • For Mr Gan Oh Boon personally, 2 weeks of imprisonment and a total fine of $8,000.
  • In default of payment of the fine, the default sentence would be 6 weeks of imprisonment.
  • He was also ordered to pay a total penalty of $988,933.58. In default of payment of penalty, the total default sentence would be 34 months of imprisonment.