Federal Court provides clarification on the PSI rules
The Federal Court recently handed down two decisions relating to the personal services income (‘PSI’) rules.
Income is classified as PSI when more than 50% of the income received under a contract is for a taxpayer’s labour, skills or expertise.
The PSI rules are integrity provisions which ensure individuals cannot reduce or defer their income tax by (for example) diverting income for their personal services through companies, partnerships or trusts. If the rules apply, the individual is taxed on the income directly.
The rules do not apply if at least 75% of the individual’s PSI is for producing a result, where the individual supplies all the required ‘tools of trade’ and is liable for rectifying defects in the work (this is known as the ‘results test’).
In the first case, the Federal Court confirmed that the taxpayer did not meet the ‘results test’.
The taxpayer argued that the ‘results test’ is still satisfied even if they do not get paid for achieving a result, provided they can show this is the custom or practice of independent contractors in their industry.
The Federal Court rejected this, agreeing with the ATO’s earlier determination to apply the PSI laws to tax the individual’s contract income as his own income, rather than income split through a partnership with his spouse (which also meant certain deductions were not allowable).
The Federal Court also affirmed the imposition of penalties for recklessness.
However, in the second case, the Federal Court allowed the taxpayer’s appeal from an earlier AAT decision, that he has failed the ‘unrelated clients test’ despite advertising his services on LinkedIn.
The Federal Court found the ATO and AAT had applied an exception for services provided through intermediaries (e.g. recruitment agencies) too broadly, and instead the Court preferred a narrow interpretation of the exception.
This matter has now been referred back to the AAT to be reconsidered, and the ATO has said it will consider this decision and whether an appeal is appropriate.
