In a blog, Caitlin McKenna of Cooper Grace Ward Lawyers noted that the ATO received 2,609 tip-offs about businesses accessing JobKeeper payments by 20 May 2020 and is investigating some of those cases.
She said the ATO will target businesses it suspects of manipulating their turnover to meet the decline in turnover test for the relevant month or quarter.
“This will include businesses that have deferred issuing invoices or processing customer orders, or have extended their credit terms and reinvoiced customers in a later month,” Ms McKenna said.
“While there will be cases in these examples that clearly fall within the anti-avoidance provisions in the JobKeeper legislation, other businesses may be caught in the audit activity despite making genuine commercial decisions.”
The commissioner can determine that a business is not entitled to a JobKeeper payment if it results from a “scheme” being entered into for the sole or dominant purpose of obtaining JobKeeper payments, or greater amounts of JobKeeper payments, Ms McKenna said.
Where the commissioner makes this determination, the business will be required to repay the JobKeeper payments, together with interest and penalties.
What to do in preparation for an ATO review
Ms McKenna said the ATO has sophisticated data-matching processes and receives tip-offs from anyone concerned that a business is incorrectly claiming JobKeeper payments.
As a result, she said it is critical for businesses to keep detailed, contemporaneous (and preferably, documentary) evidence of:
- the basis on which they have calculated their decline in turnover for the relevant period, and
- the commercial purpose for any decisions that may have led to the business qualifying for JobKeeper payments.
Further, Ms McKenna said the relevant evidence will depend on the business’s circumstances, but may include:
- correspondence with customers relating to their ability to pay on normal terms
- details of any relevant government restrictions at the specific time
- records showing a decline in customer orders or enquiries
- documents showing changes in the business’ supply chain or other external factors that have required the business to defer or bring forward the making of supplies
- financial analysis of the commercial benefits of adapting the business’s practices to address changes in the market of other external circumstances (for example, offering discounts, extended payment terms or other concessions to customers)
- directions to or correspondence with employees explaining the reasons why a business has changed its ordinary practices or has made a particular decision.
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