The Australian Treasury released Exposure Draft legislation aimed at strengthening Australia’s thin capitalisation (thin cap) rules. The Government is seeking feedback on the Exposure Draft which also proposes to disallow interest on debt used to fund foreign companies.
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.
Who do the new thin cap rules apply to?
The new regime applies to:
- foreign controlled taxpayers and taxpayers with foreign operations. These remain broadly unchanged from the existing rules
- only applies to general investors and, in part, to financial entities
- certain exemptions will continue to apply – including the $2 million (debt deduction) de minimis exemption.
What are the new tests?
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 (broadly replacing the worldwide gearing test)
- The External Third Party Debt Test (broadly replacing the arms length debt test).
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.
Other changes
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.
What are the details of the rules?
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.
Application Date
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).
How should taxpayers prepare?
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.
How can SW help?
Our experts can assist with:
- modelling the potential impact of the new rules on your debt deductions
- assessing the feasibility of restructuring the financing structure of the group
- considering whether one of the alternative tests would be applicable and beneficial to your circumstances.
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.
Contributors
The Australian Taxation Office (ATO) has updated its guidance on effective tax governance for the Top 500 private groups in Australia. The Top 500 program focuses on preventive action, and its key concept is ‘Justified Trust,’ which ensures confidence in the community that the largest private groups are paying the correct amount of tax.
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.
What is the Top 500 program?
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:
- with over $250 million in turnover, regardless of net asset value
- with over $500 million in net assets, regardless of turnover
- with over $100 million in turnover and over $250 million in net assets
- that are market leaders or groups of specific interest.
My private group is not subject to the Top 500 program – is this still relevant to me?
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.
‘Justified Trust’ and the benefits
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:
- ensuring that effective tax governance frameworks, processes and procedures are in place
- risks flagged to market in the ATO’s Taxpayer Alert and Ruling programs are not present in the group
- the tax treatments applied to tax issues arising from ordinary and atypical transactions are demonstrated as correct
- differences between accounting and tax results are complete and understood in context.
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.
Effective operation of the tax governance framework
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’:
- professional and productive working relationship
- timely lodgements and payments
- ethical and responsible behaviour.
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.
Principle 1: Accountable management and oversight
- Ensuring the segregation of tax and reporting governance, such that no one individual is solely responsible for the group’s entire tax function.
- Whilst reporting lines may be in place to ensure the controlling mind(s) determines the group’s desired tax outcome, processes set in place to achieve that outcome should be independent of the controlling minds.
Principle 2: Recognise tax issues and risks
- The ATO would take greater comfort if the group could demonstrate that the preparation of tax return includes an independent review of the draft return by an external advisor.
- Where returns are prepared externally, the group or the tax agent can readily provide documentation evidencing that correct tax treatments have been considered for significant and/or atypical transactions, and be able to explain any differences between tax and economic outcomes.
- The tax governance framework for the group’s trading entities is reviewed and endorsed by the Board annually. Processes enabling the identification and addressing of weaknesses are in place.
- Substantiation exists to support group’s position on FBT.
Principle 3: Seek advice
- An annual check-in with the ATO. There is a similar requirement under the 3-year monitoring and maintenance period upon reaching Justified Trust.
- Documentation showing escalation thresholds (for internal decision making and/or external advice) were complied with and advice was sought on uncertain tax positions.
Principle 4: Integrity in reporting
- Documentation supporting financial records of entities within the group reflecting a true and fair view of their performance and position.
- Procedures detailing any differences in financial performance between accounting and tax consolidated groups (i.e. book vs tax outcomes).
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.
Are you ATO-review ready?
In preparation for a risk review by the ATO, private groups should:
- Consider their tax processes and tax risk management policies and procedures and ensure that appropriate documentation exists to support these and how they operate in practice. Whilst a lengthy formal tax governance framework will not be necessary in all cases, clients are encouraged to have their processes documented in a manner suitable to their organisation.
- Ensure that group structure charts are up to date and other relevant documentation, including trust deeds, signed trustee resolutions are on hand and readily accessible.
- Ensure that tax positions on contentious items are appropriately documented and differences between tax and accounting results are readily explicable.
How SW can help
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.
Contributors
For employers lodging fringe benefits tax (FBT) returns, the volume of declarations and record keeping documentation is arduous and ongoing. Last week the Australia Taxation Office (ATO) issued four draft instruments that aim to reduce this.
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.
Draft FBT instruments
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:
- LI 2023/D3 in respect of overseas employment holiday transport
- LI 2023/D4 in respect of travel to an employment interview or selection test
- LI 2023/D5 in respect of remote area holiday transport
- LI 2023/D6 in respect of car travel for a work-related medical examination, work-related medical screening, work-related preventative health care, work-related counselling or migrant language training
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.
Records include:
- details of the employee and associates, including the number of family members who travelled in the car (if applicable)
- the make and model of the vehicle driven
- departure and arrival location, including the address
- the dates of travel, and
- the total number of whole kilometers travelled, not excluding any kilometers travelled whilst at the destination.
How can SW help?
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.
Contributor
SW is excited to announce that we have been recognised as a Top Graduate Employer and received 3 awards for 2023, by Prosple (formerly GradAustralia).
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.
Join our team
If you’re interested in joining our team and opening doors to a fantastic career, then please visit our Careers page.
Welcome news for foreign property investors in NSW as Revenue NSW removes foreign owner surcharge land tax and surcharge purchaser duty effective immediately, with refunds backdated to 1 July 2021.
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.
Surcharge taxes and International Tax treaties
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.
Implications for other nations
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.
Application for refunds
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.
Action from other states
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.
How SW can help
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.
Contributors
On 16 February 2023, the Australian Taxation Office (ATO) released a new guide, Practical Compliance Guide 2023/1 (PCG 2023/1), which revises the methods by which taxpayers can calculate deductions for costs incurred when working from home (WFH).
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.
What you need to know
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.
WFH calculations and proof
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.
How SW can help
- Provide further information and discuss which method suits your circumstances best
- advice around how to ensure the maximum tax benefit is obtained with minimal administration workload
- review expenses incurred and advise which expenses are eligible and can be claimed
- provide assistance with determining the useful life of assets and assist with calculating decline in value of work related items
- assist in calculating work related claims using the two methods and provision of workpapers to support the claim in the event of an audit
- help ensure that you have the necessary evidence and records to support your claims
- minimise any compliance risks.
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.
Contributor
SW is very excited to announce that we have been recognised as a Top Graduate Employer for 2023 by the Australian Association of Graduate Employers (AAGE).
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.”
Join our team
If you’re interested in joining our team and opening doors to a fantastic career, then please visit our Careers page.
Interested in registering as a graduate for 2024?
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.
On 24 January 2023, the Full Court of the Federal Court of Australia handed down its appeal decision in Commissioner of Taxation v Guardian AIT Pty Ltd ATF Australian Investment Trust [2023] FCAFC 3. The Court upheld the original judgement in favour of the taxpayer in relation to the application of section 100A but allowed the Commissioner’s appeal in regards to Part IVA for the 2013 assessment.
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.
Section 100A
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 person who is made presently entitled to the income, but does not receive the income, is taxed at a lower rate than the actual recipient of the cash; and
- the agreement, arrangement or understanding cannot be a reimbursement agreement where the agreement, arrangement or understanding arises from an ordinary family or commercial dealing.
Summary of the Guardian case
The case involves three key parties, being:
- Australian Investment Trust (AIT) – an Australian discretionary trust
- Mr Springer – a non-resident taxpayer that is the controller of AIT and other entities in the Springer Group
- AIT Corporate Services Pty Ltd (Corporate Services) – a wholly owned subsidiary of AIT.
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.
2012 and 2013
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.
2014
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.
Guardian case appeal decision
In the appeal, the Commissioner appealed against the decision of Logan J (which was favourable to the taxpayer), in relation to:
- section 100A in relation to the 2013 income tax year and
- Part IVA in relation to the 2012 and 2013 income tax years.
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).
Outcome of the appeal
The Full Court (Perry, Derrington and Hespe JJ) dismissed the Commissioner’s appeal in relation to:
- Section 100A for the 2013 income tax year and
- Part IVA for the 2012 income tax year.
However, the Court allowed the Commissioner’s appeal under Part IVA in relation to the 2013 assessment of Mr Springer.
Basis of the Full Federal Court decision
The key reasons for the Court’s decision in relation to section 100A include:
- The reimbursement agreement did not arise out of the present entitlement. There was no ‘agreement’ for the purposes of section 100A that existed prior to or at the time that the 2013 present entitlement of AIT arose – that is, there was no ‘reimbursement agreement’ involving the payment of a dividend by AIT at that time.
- An agreement requires that there be a consensus or adoption of the arrangement. Generally, the beneficiary would need to be a party to a reimbursement agreement for section 100A to apply (this should be contrasted with the decision in Idlecroft and the Commissioner’s view in paragraph 16 of TR 2022/4).
- The attribution of purpose from professional advisors is more limited in the context of section 100A compared to intention in Part IVA. Given that Mr Springer had not provided his advisors authority to act on behalf of the relevant entities, the intention of the advisors could not be attributed to Mr Springer.
- Even if the intention of the advisors were attributable to Mr Springer, the advisors did not specifically contemplate the reimbursement agreement until 15 January 2014, being 7 months after Corporate Services was made presently entitled to the income. At the time of the present entitlement arising, the option of paying the dividend was not ‘wholly conjectural’ but the Court held there was insufficient evidence of an agreement.
- Although the comments were made in obiter, the Court recognised (and the Commissioner was noted in the judgement as agreeing) that the ordinary commercial and family dealings exception could apply where trust income is appointed to a corporate beneficiary. However, the case provides limited guidance in relation to the ordinary commercial and family dealings exception and provides little comfort to taxpayers that were hopeful of the Courts rejecting the Commissioner’s views in his recent tax ruling on section 100A (TR 2022/4).
Part IVA
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 person enters or carries out a scheme.
- The scheme provides a taxpayer with a tax benefit.
- The dominant purpose (based on the objective facts) of entering the scheme is to obtain a tax benefit.
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:
- The factors to establish the objective intention of the taxpayers requires an examination of the manner in which the scheme was entered into or carried out. For 2012, there was an evolution of steps that meant the dividend was paid from Corporate Services to AIT. However, at the time the scheme was entered into there was no objectively ascertainable circumstances that would give rise to an expectation that the dividend would have been paid.
- In contrast, as the 2012 UPE was cleared via the dividend in 2013, it was not unreasonable to expect that the 2013 UPE would be cleared via a dividend particularly given that Mr Springer had concerns about holding cash in Corporate Services and Corporate Services had not been used as a wealth accumulation vehicle.
Concluding remarks
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.
How can SW help?
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.
Contributors
随着本自然年的结束，员工福利税（FBT）年终申报的日期也越来越近。 今年，我们认为雇主需要注意两项重要变更，因其可能影响他们的FBT申报表。
电动车和员工福利税
2022年11月25日，澳大利亚政府通过了《2022年财政法律修正案（电动车折扣）》，规定从2022年7月1日起，对低排放和零排放的汽车免征员工福利税（FBT）。
该豁免只适用于以下汽车：
- 电池电动车 – 只使用电动机，没有安装燃料电池或内燃机
- 氢燃料电池电动车 – 用燃料电池充电的车辆。
- 插电式混合动力电动车 – 使用电动机的机动车，可以插电充电，但也安装了内燃机。
关于这项豁免，需要注意的关键点：
- 该豁免只适用于现有雇员。
- 该豁免只适用于价值低于豪车税起征点的汽车。对于节能型车辆，2022-23财年度的起征点是84,916澳元。
- 与其他豁免不同，被豁免的汽车福利价值将纳入雇员的应报告员工福利金额中。
- 这项豁免将在三年后进行复审，以评估电动车的使用是否有增加。
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。
FBT记录保存规定变更
拟定变更已经发布，将赋予专员修改现有FBT记录保存义务的权力，这样雇主便可以现有公司记录为凭据，而不必倚赖现有雇员声明和其他规定记录。
这项变更旨在减少雇主在最终确定其FBT申报表时的合规成本，让他们可以在现有记录或其他可能已留存的记录之间选择。 然而，如果雇主想沿用目前的做法，他们依然可以获取雇员声明。
财政部还发布了两份立法文件草案，就可接受的出行日志和搬迁运输申报记录提供了指南。 总结如下：
| 出行日记将适用原来的抵扣规则 | 为搬迁的雇员提供搬迁运输 |
|---|---|
| – 用英文书写，并包含接受福利的雇员姓名； – 注明出行持续的时间； – 而对于雇员在出行期间为赚取其应评税收入而开展的每一项活动，则应注明： – 开展活动的地点； – 活动开始的日期和大概时间； – 活动持续的时间；以及 – 活动的性质。 | – 领取福利的雇员或其相关人员的姓名； – 乘坐汽车的家庭成员人数； – 所驾驶汽车的品牌和型号； – 出发和到达地的地址； – 出行日期； – 出发地和到达地之间的总里程数。 |
对总体符合信息要求的记录没有数目限制，而且信息来源可以有多个。 因此，在实务中，如果雇员的日程里列出了足够的细节，那么雇主可能只需保存这份记录。
如果该法案在2023年3月31日前获得御准，预计这些措施将从2023年4月1日开始的FBT年度始生效。
如果您对这项FBT豁免有任何相关疑问，请联系您的信永中和顾问。
Bitcoin mining operations that utilise renewable energy aim to mitigate the substantial energy consumption of other bitcoin miners, while supporting the electricity grid needs. Simon Tucker talks to Cam Nelson at DAME Technologies.
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.