The Exposure Draft, released on 16 March 2023, is in line with the Government’s commitment to address tax avoidance practices of multinational enterprises and streamline with (OECD) best practice guidelines. To learn more about the previous announcements, see our article about the Proposed changes to Australia’s thin capitalisation rules.
From 1 July 2023, the new proposed thin cap provisions will replace the existing rules and limit the amount of interest deductions for certain entities. With 3 months before its intended commencement, the Government has finally released a draft of the new rules. The Exposure Draft legislation is open for consultation until 13 April 2023 with submissions to the Australian Treasury.
The new regime applies to:
The new regime’s safe harbour will be broadly based on the taxpayer’s current year taxable income – instead of the current safe harbour which is based on a taxpayer’s balance sheet.
The new safe harbour will be known as the Fixed Ratio Test (FRT). The FRT will limit interest deductions to 30% of a taxpayers Tax EBITDA. The Tax EBITDA will broadly be calculated as a taxpayer’s taxable income adjusted for interest deductions, losses and tax depreciation. Any non-deductible interest can be carried forward for 15 years.
Two other tests will be available:
The Group Ratio Test will apply to disallow interest deductions by applying a group ratio to the taxpayer’s tax EBITDA – instead of the 30% FRT. The group ratio is calculated by applying a complex formula broadly equal to the third party interest expense of the global group divided by the Group EBITDA.
As the name suggests, the External Third Party debt test will only apply to debt issued to external parties – meaning taxpayers may no longer be able to deduct interest issued to related parties even where third parties would have loaned funds on the same terms.
The Government also proposes to repeal current provisions that allow interest and debt deductions referrable to foreign investments. Under the exposure draft, interest would not be deductible where it was referable to the derivation of non-assessable non-exempt dividend income.
A more detailed analysis of the exposure draft proposals is contained in our Technical Briefing in the Download below. We encourage you to talk to the SW team to understand these changes further.
The new legislation is set to apply to income years commencing on or after 1 July 2023. Disappointingly, there is still uncertainty on the application date for entities that are early balancers (for example, the entity has a 31 December year-end).
We recommend that taxpayers start planning for the draft legislation to be implemented on 1 July 2023. Whilst we expect there to be minor technical amendments, the draft legislation is predominantly based on the OECD guidance.
Therefore, restructuring debt arrangements may be necessary, and transaction documentation needs revisiting prior to 30 June 2023.
Taxpayers should consider whether restructuring debt arrangements are necessary and the impact of doing so.
Our experts can assist with:
Reach out to your SW advisor for support from our specialist tax team. Please also download the document below for a deeper dive into the technical details.
To achieve Justified Trust, private groups need to satisfy four key areas, including the effective operation of a tax governance framework. The ATO has outlined seven key principles for effective tax governance, and private groups need to satisfy the first four principles to achieve Justified Trust.
Drawing insights from the ATO’s findings report, the ATO has further outlined ten items that demonstrate effective tax governance frameworks.
While the Top 500 program targets private groups with a specific size, the ATO’s emphasis on tax governance is relevant to all substantial private groups.
The program deviates from the typical ATO review in that it focuses on preventive, rather than corrective, action and is underpinned by the concept of Justified Trust. The program is targeted at groups that are not public or foreign owned:
Whilst the main focus of this alert is the Top 500 private groups, the answer to this question is yes. Increasingly, the ATO is placing emphasis on tax governance as a concept relevant to all substantial private groups, so it is not something that is confined to the Top 500.
The ATO’s ‘Next 5000’ program, for example (which focuses on groups with a net wealth of $50 million plus) also places significant emphasis on tax governance in assessing taxpayers tax affairs. All private groups of significant size are encouraged to have a documented tax governance framework tailored, of course, to their scale, operations and resources. Therefore the comments below relating to tax governance matters have relevance to a broader range of groups.
A Top 500 private group needs to meet the four key areas listed below at a ‘whole of group’ level to achieve the Justified Trust threshold:
Once a private group has attained Justified Trust, the benefits generally include a ‘lighter touch’ approach to reviews of the group by the ATO for three years.
To achieve Justified Trust, the implementation and effective operation of the tax governance framework is an essential requirement.
The ATO has outlined seven key principles for what constitutes an effective tax governance framework, with an emphasis on the importance of the first four principles (noted above) as ‘required items’ and the remaining three principles listed below as ‘additional items’:
In practice, a private group should likely satisfy these three items if the ‘required items’ are effectively executed.
Drawing insights from the findings report (which is generally published annually), the ATO has recently further outlined ten items derived from the four principles for which a private group can rely upon to demonstrate that its tax governance framework is operating effectively and as intended.
Apart from the unwavering emphasis on the importance of maintaining detailed documentation of procedures for tax function, another observation worth noting is that a high assurance rating could be achieved satisfying at least three out of the ten items illustrated.
In preparation for a risk review by the ATO, private groups should:
SW has extensive experience in assisting clients and their advisors with the design, documentation and testing of tax governance frameworks and the ATO’s tax compliance program (such as the Top 500 and Next 5,000 reviews).
Should you have any queries in relation to tax governance issues, Justified Trust, ATO reviews or other related matters, please reach out to your SW contact or Key Contacts listed here.
The draft legislative instruments specify acceptable alternative record-keeping obligations (other than an employee declarations) in respect of expense payment fringe benefits. Whilst they are still in draft, they are intended to apply for the year ending 31 March 2023.
This is welcome news for many employers, as the changes will significantly reduce the volume of record duplication and the ever-challenging task of chasing employees for declarations to calculate FBT liability.
Following a review of record keeping requirements last year, proposed changes to travel diary and relocation transport records were released, and the ATO has now issued the following four draft instruments for consultation:
The draft instruments propose that employers be able to maintain alternate records to reduce the taxable value of transport benefits.
It has been clarified that this information can come from different records, but must be in English. This will allow employers to rely on existing corporate records, including travel calendars.
With the intended date of application to be from 1 April 2023, it is an ideal time for employers to review their current FBT processes, with a view to adjustments for these alternative records from 31 March.
The majority of FBT lodgments are due by 21 May.
Assisting employers to ease the FBT return preparation process is a key service of the SW Tax team. Our experts are on hand to advise you, and our proprietary CTSplus FBT software is highly automated to assist employers. Please reach out to the team for a complimentary exploratory conversation.
If you have any thoughts or suggestions regarding the draft legislative instruments, please contact your SW advisor or the contacts here.
Prosple is a graduate careers and education technology platform connecting students, universities and employers. The awards are the result of a Prosple survey of thousands of students across the country.
Duane Rogers, the CEO of SW, announces the firm’s latest achievements.
“I am thrilled to share that we have been recognised as a Top Graduate Employer for 2023 by Prosple” he says, “This is a fantastic accomplishment for all the teams involved, and we couldn’t be prouder.”
Rogers also revealed that SW has been voted Number 1 in Accounting and Advisory for three categories
“These accolades are a true testament to the hard work and dedication of our teams,” he says. “Our culture and environment at SW are second to none, and it’s fantastic to see our people recognise that. We undertook a significant renovation in three of our offices during COVID, focusing on how we can support people in a hybrid work environment. We have also made great investments, not only the aesthetics and layout of our offices, but also the technology, ensuring we can deliver outstanding service for our clients and work together collaboratively no matter where we are based.”
SW is committed to providing the best experience for its employees, having recently launched its Employee Value Proposition, which focuses on Balance, Growth and Connection.
“At SW, we strive to achieve a balanced lifestyle where people look forward to coming to work every day,” he shares. “We want our employees to feel valued, supported, and empowered to succeed.”
SW has now opened doors to our graduate and vacationer applications for 2024.
“This is an exciting time for us, and we can’t wait to welcome the next generation of talent to our team,” he says. “If you know someone who might be interested in registering as a graduate for 2024, please encourage them to apply. We’re looking forward to hearing from them.
If you’re interested in joining our team and opening doors to a fantastic career, then please visit our Careers page.
Revenue NSW has identified that the surcharge purchaser duty and foreign owner surcharge land tax provisions are inconsistent with international tax treaties entered into by the Federal Government with New Zealand, Finland, Germany and South Africa.
Effective immediately, citizens of these countries purchasing residential-related property (in their own capacity) will no longer be required to pay NSW foreign owner surcharge duty or foreign owner land tax surcharges on those properties. Foreign owner surcharges are significant – currently the stamp duty surcharge is 8% of dutiable value and the land tax surcharge is 4% from the 2023 land tax year onwards.
Surcharge tax liabilities for non-individuals, such as corporations, trusts or partnerships that arise because of an entity’s affiliation with these nations may also be affected by the international tax treaties.
Refunds may be available where surcharge taxes have been paid by investors from these countries from 1 July 2021 onwards.
Certain international tax treaties entered into between Australia and other relevant countries contain a non-discrimination provision. Broadly, the intent of these provisions is to ensure that a resident of the other treaty country is not subjected in Australia to any tax which is more burdensome than that imposed on an Australian resident. This is typically limited to federal taxes, such as income tax and fringe benefits tax.
However, the treaties entered into between Australia and the now exempted countries (New Zealand, Finland, Germany and South Africa) provide a more encompassing non-discrimination provision which broadly applies to taxes of every kind imposed by Australia – which would include state taxes such as land tax and duty.
In this regard, Revenue NSW have conceded that the current NSW surcharge provisions are contradictory to the tax treaty applying to these countries.
It is not yet known how the recent changes will impact on residents from other countries. There may be other international treaties with non-discrimination provisions which may also need to now be considered in light of these changes.
Revenue NSW have stated that they will proactively identify customers and transactions that may be eligible for the removal of surcharge purchaser duty and surcharge land tax. Where a transaction has been identified for the removal of surcharge taxes, a Revenue NSW representative will contact the relevant person to make arrangements for the payments to be refunded.
To ensure you are eligible for the refund, Revenue NSW will require a certified copy of your current passport or citizenship certificate. Once this information has been received, refunds will be processed within 28 days.
If Revenue NSW does not contact you and you believe that you may be eligible for a refund, you can contact Revenue NSW directly in relation to the matter. If you require assistance with the application for a refund, please reach out to us at SW.
The Victorian State Revenue Office has stated that it has taken note of the changes in NSW and are currently considering the implications of this in relation to surcharge taxes in Victoria.
At the time of writing no other revenue office has commented on this matter, however, the relevant DTAs would potentially apply to surcharges imposed by all Australia States, and further announcements may follow.
In some cases, property owned by a Trust or company may be considered for the refund where the foreign citizen of these countries has a substantial interest in the entity.
If you need any assistance determining whether you are eligible for a refund or how the surcharge taxes will apply to you going forward, please reach out to us.
One of the significant changes introduced by the ATO is the discontinuation of the 80 cents per hour pandemic shortcut method, which was available since 1 March 2020. Commencing 1 July 2022, taxpayers can claim a deduction for their actual expenses or opt to use the revised fixed-rate method of 67 cents per hour for each hour worked from home during the tax year. The revised fixed-rate method covers expenses such as electricity, gas, phone usage, internet, stationery, and computer consumables. ATO has also required more record-keeping documents to prove your WFH hours.
The ATO has advised taxpayers to keep accurate records of their hours worked from home during the income year and invoices or bills in the name of the homeowner or service recipient as evidence of additional running expenses incurred. It is imperative to note that to claim WFH deductions, taxpayers must work from home to fulfil their employment duties, and not just carry out minimal tasks such as checking emails or taking calls.
It is worth noting that assets and equipment such as a computer or similar electronic device, desk, and office chair that often provide taxpayers with more substantial deductions are not included when using the revised fixed-rate method and need to be claimed separately.
PCG 2023/1 relaxes the ATO’s approach towards home offices, and taxpayers are no longer required to have a separate home office or a dedicated work area set aside in their homes to claim WFH deductions. However, if multiple individuals are working from home simultaneously and claim the actual cost method, they must apply an appropriate apportionment methodology to isolate individual components of the expenses incurred.
The ATO has announced that from 1 March 2023, they will take a stricter approach to record-keeping, requiring taxpayers to provide records as they occur, such as timesheets, rosters, logs of time spent accessing employer systems, or a diary of the full year to substantiate their WFH hours. The ATO will no longer accept estimates or four-week diaries from that date.
These revised deduction methods will significantly impact individuals working from home who claim tax deductions for expenses incurred during that time. Accurate record-keeping of WFH hours and related expenses is crucial to ensure that deductions are appropriately claimed. In case of any queries, taxpayers are advised to contact their tax professionals or the ATO directly.
Click here to find out the details of different calculation methods and what are the common mistakes when making WFH claims in our previous article.
If you have any queries about the revised deduction methods for work from home expenses or PCG 2023/1, please contact your SW representative or check out the key contacts provided.
AAGE is a platform that represents organisations that recruit and develop Australian Graduates and the voting is done by graduates that have spent up to a year working with these companies.
Duane Rogers, CEO of SW said, “We are honoured to be voted number 42, alongside many well-known Australian and global brand names. The AAGE survey spans corporate Australia, not just the accounting and advisory profession, so to rank alongside these organisations is a testament to our approach in ensuring we are constantly asking, and understanding, what it is people are looking for in their graduate experience, and then working to ensure our teams are set up to succeed.”
At SW, we believe in opening doors to our graduates with the best possible start to their careers. Our Graduates create their own pathways and immediately get exposure to assisting clients across a range of markets and industries. This recognition showcases the strength of our values and the core of our culture.
Says Mr Rogers, “A big thank you to all our team members, including our graduates for their hard work, dedication and adding value to our culture and firm.”
If you’re interested in joining our team and opening doors to a fantastic career, then please visit our Careers page.
You can also keep an eye out for our updates through LinkedIn or for further details can be found on our Careers page for graduates.
The appeal decision is a win for the taxpayer regarding the application of section 100A, particularly with respect to whether an agreement was reached between the parties prior to a beneficiary becoming presently entitled to trust income – however, it is important to have the facts and evidence supporting that such an agreement was not in place.
The taxpayer was however unsuccessful with respect to Part IVA in the 2013 income year, which is a win for the ATO who will continue to apply Part IVA to arrangements involving trust distributions that are contrived to achieve tax benefits. Taxpayers need to be comfortable that trust distributions are not made for the dominant purpose of reducing income tax payable.
Building on our previous article about this case, the SW team recaps the facts and looks at the detail of the Appeal and its outcome.
Firstly to recap, section 100A is an anti-avoidance provision that targets situations where one person is made presently entitled to income of a trust, but another person receives the benefit of the funds represented by the income. For section 100A to apply there must be a reimbursement agreement (very broadly defined) and:
The case involves three key parties, being:
Corporate Services was a newly incorporated ‘cleanskin’ company created for the purpose of receiving distributions from AIT. The other Springer group entities had previously traded and were being wound down or sold in order for Mr Springer to simplify his life and transition to retirement.
Corporate Services was made presently entitled to the income of AIT for the 2012 and 2013 income tax years, which did not include franked dividends. AIT paid to Corporate Services an amount in cash to cover the income tax liability arising from the distribution. The balance owing from AIT to Corporate Services remained as an unpaid present entitlement (UPE).
In the following income years, Corporate Services declared a fully franked dividend to AIT. The UPE balance and the dividend payable were offset, so that the UPE was fully discharged.
The franked dividend received by AIT in those subsequent years was distributed to Mr Springer. As a non-resident, Mr Springer was not subject to any further tax on the dividend.
Corporate Services was made presently entitled to the income of AIT for the 2014 income tax year. Similar to 2012 and 2013, AIT paid to Corporate Services an amount in cash to cover the income tax liability arising the distribution. However, the UPE balance was converted to a loan that was placed on complying Division 7A terms.
In the appeal, the Commissioner appealed against the decision of Logan J (which was favourable to the taxpayer), in relation to:
Therefore, the Commissioner did not appeal against the elements of the previous decision made in favour of the taxpayer in regard to section 100A (2012 income year) and section 100A and Part IVA (2014 income year).
The Full Court (Perry, Derrington and Hespe JJ) dismissed the Commissioner’s appeal in relation to:
However, the Court allowed the Commissioner’s appeal under Part IVA in relation to the 2013 assessment of Mr Springer.
The key reasons for the Court’s decision in relation to section 100A include:
Part IVA of the income Tax Act is the general anti-avoidance provision of Australian income tax law. The Court held that Part IVA would apply in relation to the 2013 income tax year (although not the 2012 income tax year). For Part IVA to apply, the following elements need to be satisfied:
A key issue in determining whether Part IVA applies to any given situation involves consideration of an alternative postulate or counterfactual – what would have happened (annihilation approach) or what might reasonably be expected to have occurred (reconstruction approach) if the relevant scheme had not been entered into?
For 2012 and 2013 income tax years, the Commissioner’s alternative postulate was based on AIT making a direct distribution of unfranked income to Mr Springer. Therefore, in each year there was a scheme and a tax benefit given that Mr Springer would have paid tax at marginal tax rates (45%) under the alternate postulate in relation to the distribution of unfranked dividend income, rather than actual tax paid by Corporate Services of 30%.
The Court held that the formulation of the alternate postulate needed to be based on the commercial outcomes of the arrangement. As Mr Springer ultimately received the cash relating to the 2012 and 2013 unfranked income, it was reasonable for the Commissioner to form the alternate postulate whereby Mr Springer directly received a distribution of unfranked income from AIT.
The Court emphasised that the taxpayer has the onus of what might reasonably be expected absence the scheme (not just proving that the Commissioner’s alternate postulate was unreasonable). For the 2013 income tax year, the Court emphasised that in determining the alternative postulate any adverse tax impacts should be disregarded (that is, it was not open to the taxpayer to argue that an alternative arrangement would not have been entered into because the tax costs would be too high).
The Court held that the dominant purpose of entering or carrying out the 2012 scheme was not to obtain a tax benefit whereas the dominant purpose of the 2013 scheme was to obtain a tax benefit. The decision of the Court was based on the following:
While the appeal decision is a win for the taxpayer regarding the application of section 100A, unfortunately the case does not provide guidance on the ordinary commercial and family dealings concept, which is crying out for judicial clarification. The appeal decision also provides further ammunition to the ATO with respect to the application of Part IVA to such arrangements.
SW has assisted a number of taxpayers in recent years in relation to ATO reviews and audits on 100A. If you would like any further information, please contact a member of the SW tax team.
即便薪酬待遇了包含了车辆，也可以享受这项豁免。 因此，这对雇员来说是一个很好的机会，可以把这些车辆纳入薪酬待遇里，从而节省大量资金。 据估计，一辆价值74,000澳元的电动车每年可节省14,400澳元的税收。
In our latest Digital Discussions interview, SW Tax Partner, Simon Tucker, talks to Cameron Nelson, CEO of DAME Technologies, a sustainability-first renewable energy bitcoin mining company, about how utilising renewable energy in crypto and bitcoin mining can support both the fluctuating needs of the electricity grid while also supporting renewable energy investors by utilising energy production that doesn’t make it to the grid.
Simon has worked with Cam and DAME Technologies for several years and SW appreciates his time. Cam articulates the DAME offering succinctly and has some great insights to share. Take a look.