From 28 September 2020, the eligibility tests to access JobKeeper for employers will change, as will the amount of the JobKeeper payment for employees and business participants. To receive JobKeeper from 4 January 2021, employers will need to assess their eligibility again.

Eligibility for one JobKeeper period does not entitle you to, or exclude you from, payments in another period. Each eligibility period is addressed separately. That is, there might be businesses that qualified for the first tranche of JobKeeper, don’t qualify for the second tranche but qualify for the third.

Eligible Employers

An Eligible Employer is an employer that:

  • on 1 March 2020, carried on a business in Australia or was a non-profit body pursuing its objectives principally in Australia; and
  • before the end of the JobKeeper fortnight, it met the original and alternate decline in turnover tests (note: additional tests apply from 28 September 2020);

and was not

  • on 1 March 2020, subject to Major Bank Levy for any quarter ending before this date, a member of a consolidated group and another member of the group had been subject to the levy; or
  • a government body of a particular kind, or a wholly-owned entity of such a body; or
  • at any time in the fortnight, had a provisional liquidator or liquidator appointed to the business or a trustee in bankruptcy appointed to the individual’s property.

1 March 2020 is an absolute date.  An employer that had ceased trading before 1 March 2020, commenced after 1 March 2020, or was not pursuing its objectives in Australia at that date is not eligible.

Business Owners

Business owners, being sole traders with an ABN or one of any partner in a partnership, adult beneficiary of a trust, director or shareholder who works in the business, will be eligible for the JobKeeper payment if the following conditions are met:

 

  • the entity carried on a business on 1 March 2020 and is not a not-for-profit entity; and
  • had an ABN on 12 March 2020; and
  • had some business income in the 2018-19 income year included in a tax return that was lodged by 12 March 2020, or made some supplies connected with Australia in a tax period that started on or after 1 July 2018 and ended before 12 March 2020.  (Note: The Commissioner can potentially extend the deadline for holding an ABN, lodging the 2019 tax return or lodging a relevant activity statement.); and
  • passed the decline in turnover test;

and the individual was not:

  • employed by the business at any time in the relevant fortnight; or
  • a permanent employee of another entity at the time the individual gives the nomination notice (i.e., they do not hold a full time or part time role with another employer); or
  • entitled to parental leave pay or dad and partner’s pay or worker’s compensation payments for being totally incapacitated at work;

and, as at 1 March 2020, the individual satisfied each of the following:

  • was aged 16 years or over; and
  • if aged 16 or 17 years, they are either financially independent or are not undertaking full-time study; and
  • are actively engaged in the business; and
  • are an Australian Resident under the Social Security Act or an Australian tax resident who holds a special category visa.

If the criteria have been met, the individual is eligible if they were actively engaged in the business in the fortnight of the JobKeeper payment, they agreed to be nominated for JobKeeper payments, and also confirmed they meet the eligibility criteria.

What about the directors who work in the business?

If more than one director wants to access JobKeeper payments, they need to meet the eligibility criteria of an employee (see Eligible Employees).  To be an employee, a director would have received salary or wages that was reported as salary or wages on activity statements, payment summaries, tax returns, etc.

If a director merely receives a distribution from the business, then they are unlikely to be an employee.

The decline in turnover test

For businesses already enrolled in JobKeeper, to receive payments from 28 September 2020 you need to meet an extended decline in turnover test based on actual GST turnover,

Businesses that are enrolling for the first time need to meet the basic eligibility test and the decline in turnover test/s for the relevant period.

Most businesses will generally use their Business Activity Statement (BAS) reporting to assess eligibility.  However, as the BAS deadlines are generally not until the month after the end of the quarter, eligibility for JobKeeper will need to be assessed in advance of the BAS reporting deadlines to meet the wage condition for eligible employees.

The ATO has the power to extend the time an entity has to pay employees in order to meet the wage condition.  For the JobKeeper fortnights starting 28 September 2020 and 12 October 2020 the ATO is allowing employers until 31 October 2020 to meet the wage condition for all employees included in the JobKeeper scheme.

Calculating GST Turnover

Calculating GST turnover for tranches 2 and 3 of JobKeeper is different to the original JobKeeper requirement, as entities will only be using current GST turnover figures rather than projected.

When applying the new turnover reduction tests for the September 2020 quarter and December 2020 quarter, entities that are registered for GST must use the same method that is used for GST reporting purposes.  That is, if the entity is registered for GST on a cash basis then a cash basis needs to be used to calculate current GST turnover for the purpose of these new tests.  Entities that are not registered for GST can choose whether to calculate GST turnover using a cash or accruals basis, but must use a consistent method.

Current GST turnover includes proceeds from the sale of capital assets unless the sale is input taxed.  It also includes taxable and GST-free supplies, but should exclude input taxed supplies such as residential rental income and financial supplies like dividends, interest, etc.  JobKeeper and ATO cash flow boost payments should be excluded from the calculation, along with other payments that don’t represent consideration for a supply made by the entity, such as certain State-based grants.

What if you don’t have a comparison period, or there was a one-off event?

The Commissioner of Taxation has the power to set out alternative tests that establish eligibility in specific circumstances where it is not appropriate to compare actual turnover in a quarter in 2020 with actual turnover in a quarter in 2019.  The Commissioner has provided a number of alternative tests for the September and December quarters.

Not-for-profits

A number of modifications apply to not-for-profit entities when it comes to calculating GST turnover under the original decline in turnover test.  It appears that the same modifications will generally also apply when determining whether a not-for-profit entity passes the new decline in turnover tests for the September and December quarters.

Wage Condition

To be eligible to receive JobKeeper payments, the employer must meet a wage condition.  That is, employers must have paid the eligible employee at least the applicable JobKeeper payment for the relevant fortnight.

The ATO reimburses the employer for the JobKeeper payment monthly in arrears.

As noted above, for the JobKeeper fortnights starting 28 September 2020 and 12 October 2020, the ATO is allowing employers until 31 October 2020 to meet the wage condition for all employees included in the JobKeeper scheme.

 

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This information is provided on the understanding that it neither represents nor is intended to be advice or that the authors or distributor is engaged in rendering legal or professional advice.  Whilst every care has been taken in its preparation no person should act specifically on the basis of the material contained herein. If assistance is required, professional advice should be obtained.
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V1 of JobKeeper 2.0 from 28 September 2020 17 September 2020