While the ruling sets out the ATO’s interpretation of the law, the draft Practical Compliance Guideline is arguably the more important document for many taxpayers because it provides a roadmap for understanding how the ATO intends to allocate its compliance resources. In simple terms, taxpayers can self-assess their arrangements into a risk zone ranging from white (lowest compliance risk) to red (highest compliance risk).

For CFOs, financial controllers, and technology businesses, the key question is often not whether software payments exist, but whether the ATO might consider part of those payments to be royalties that should be subject to royalty withholding tax. The new framework is intended to provide greater certainty around that issue.

Why has the ATO released this guidance?

The framework follows the High Court’s decision in PepsiCo and reflects the ATO’s view that economic substance and examining the totality of the arrangement may be relevant in identifying an embedded royalty, even where no royalty is expressly stated in the contract.

The guidance currently applies to software intermediation and distribution arrangements, with further schedules expected for other industries and transaction types.

Understanding the risk zones

Particular focus on restructures

The draft guidance includes a clear ATO warning on restructures.

The ATO may review changes to contractual or operating structures that reduce or eliminate Australian royalty withholding tax, even where the arrangement otherwise falls within a lower-risk zone. Transfer pricing, MAAL, DPT, and Part IVA may also be relevant.

Multinational groups undertaking software licensing or distribution restructures should therefore consider royalty withholding tax alongside transfer pricing.

Amber Zone example

A foreign software provider licenses ERP software to AU Software Co, an Australian related-party distributor, for supply to Australian customers. The agreement with the software owner grants AU Software Co the exclusive right to market and distribute the ERP software to Australian customers. However, it does not grant AU Software Co the right to make copies of, or modify, the ERP software. AU Software Co enters into customer contracts and receives payments from those customers, while the offshore supplier owns the software and provides the underlying platform and support. AU Software Co does not recognise any part of its payment to the offshore supplier as a royalty for Australian tax purposes.

On the facts in Example 8, the ATO would treat the arrangement as falling within the amber zone. The key risk indicators are that the Australian distributor is selling software-related products or services to Australian customers, the software and associated intellectual property are held offshore, and no Australian royalty has been recognised or subjected to royalty withholding tax.

The example illustrates that, where the relevant software rights and economic value sit offshore but Australian customer-facing activities are carried on locally, the ATO may expect taxpayers to undertake and document a more detailed royalty risk assessment.

By contrast, the risk assessment changes to the red zone where AU Software Co is also granted rights to make copies of, or modify, the ERP software. A red zone outcome may also arise where the software owner is located in a specified jurisdiction, or, generally speaking, is otherwise shielded from tax on the relevant income.

How SW can help

Businesses with cross-border software, SaaS, platform or technology distribution arrangements should review their existing arrangements against the framework. Even where no royalty has historically been recognised, the ATO expects taxpayers to be able to explain and support that position.

SW can assist in the following assessment:

• assessing where your arrangement is likely to sit within the ATO’s risk framework
• whether the undissected payments contain a royalty component
• whether sufficient documentation exists to support your position
• identifying whether practical steps are available to mitigate the relevant royalty withholding tax risk.

The release of TR 2026/2 and PCG 2026/D4 signals that software royalty arrangements will remain an area of significant ATO focus. Early assessment of risk positions and supporting documentation may help reduce the likelihood of future disputes and compliance costs.

The post What the ATO’s finalised software royalties ruling & draft guidance means for businesses appeared first on SW Accountants & Advisors.

Year 2 is different.

For groups with a 31 December 2025 year end, the first substantive Pillar Two returns will generally be due by 31 March 2027, being 15 months after year end. Accordingly, MNE groups should already be considering their year 2 compliance strategy and data requirements.

The ‘no charging mechanism’ position no longer applies

One of the unique features of the first year of Pillar Two compliance was that many jurisdictions were not yet subject to any qualifying charging mechanism, being the Income Inclusion Rule (IIR), Domestic Minimum Tax (DMT) or Undertaxed Profits Rule (UTPR).

As a result, for the year ended 31 December 2024, some jurisdictions could effectively be excluded from substantive Pillar Two consideration because no jurisdiction had a charging mechanism to impose top-up tax in relation to those jurisdictions.

For the fiscal year ended 31 December 2025, this position changes significantly.

From fiscal years beginning on or after 1 January 2025, Australia’s UTPR commences. At the same time, many jurisdictions that did not previously apply an IIR or DMT have now introduced one or both charging mechanisms.

Consequently, jurisdictions that attracted limited Pillar Two attention during year 1 may now require a more detailed assessment. Finance teams should avoid assuming that conclusions reached during the 2024 compliance cycle remain valid for 2025.

More jurisdictions will require safe harbour analysis

For many groups, the 2024 exercise focused only on (a limited number of) jurisdictions where a charging mechanism existed and therefore where a potential top-up tax exposure could arise.

For 2025, safe harbour analysis may need to be performed for jurisdictions that did not require assessment in the prior year because no charging mechanism applied.

Where a jurisdiction satisfies one of the Transitional CbCR Safe Harbour tests, no full Pillar Two calculation will generally be required for that jurisdiction.

However, where none of the available safe harbour tests are satisfied, the MNE group may be required to undertake full GloBE calculations for that jurisdiction.

Accordingly, even where the underlying business has not changed materially, the number of jurisdictions requiring analysis may increase significantly from year 1 to year 2.

The transitional CbCR safe harbour ‘once-out, always-out’ rule becomes more relevant

As groups move into their second year of compliance, greater attention should be given to the operation of the TCSH rules.

Broadly, where a jurisdiction ceases to qualify for the TCSH for one year, that jurisdiction is unable to subsequently re-enter the safe harbour regime in a later year.

This ‘once-out, always-out’ concept means that safe harbour assessments should be undertaken carefully and supported with appropriate documentation.

The year 2 assessment therefore should not simply be viewed as a rollover of the year 1 position.

Jurisdictions not assessed in 2024 should not automatically lose access to TCSH

A practical issue likely to arise for many MNE groups concerns jurisdictions that were not required to be analysed in 2024 because no charging mechanism applied.

In our view, the fact that a jurisdiction was not required to consider the TCSH in 2024 should not, by itself, prevent that jurisdiction from relying on the TCSH when a charging mechanism first becomes applicable in 2025.

This situation should be distinguished from a jurisdiction that was assessed in 2024 and failed the TCSH requirements.

In other words, the fact that the TCSH was not relevant to a particular jurisdiction in year 1 should not necessarily preclude that jurisdiction from accessing the TCSH in year 2 when a charging mechanism becomes applicable.

Given the potential compliance savings that can arise from the TCSH, this distinction may be important for many MNE groups.

Group restructures may create additional Pillar Two compliance obligations

MNE groups that undertake restructures during the year should carefully consider the Pillar Two implications, even where the restructure appears relatively straightforward.

In particular, changes involving the identity of the Ultimate Parent Entity (UPE), the insertion of a new holding company, mergers, demergers, acquisitions, disposals, or changes to ownership chains can give rise to additional Pillar Two compliance requirements. In some cases, a single accounting period may involve multiple reporting obligations, separate filing positions, or different safe harbour assessments before and after the restructure.

Importantly, transactions that may appear routine from a legal or commercial perspective can have consequences for Pillar Two group composition, filing obligations, and the application of safe harbours. Accordingly, MNE groups should consider reviewing any restructuring activity undertaken during the year to determine whether it affects their Pillar Two compliance position, reporting obligations or filing approach. Early identification of these issues can help avoid unexpected compliance obligations and reduce the risk of errors when lodgement deadlines approach.

Governance & readiness remain critical

While many MNE groups may continue to benefit from the TCSH for the year ended 31 December 2025, this relief is temporary. Accordingly, organisations should use the transitional period to prepare for the point at which full GloBE calculations are required.

In our experience, groups that use the transitional years to enhance data collection processes, identify information gaps, and establish governance frameworks will be significantly better positioned when safe harbours cease to be available.

Management should therefore consider:

• whether the group currently captures all data that may be required to perform full GloBE calculations in future years
• whether roles and responsibilities between tax, finance, and accounting teams remain appropriate
• whether assumptions adopted during year 1 remain valid
• whether local advisors are required in newly implementing jurisdictions
• whether documentation supporting safe harbour positions is being maintained
• whether reporting to senior management and audit committees remains fit for purpose.

Revenue authorities around the world are increasingly focused on Pillar Two implementation, and MNE groups should expect greater scrutiny as the first substantive returns begin to be lodged. MNE groups that invest in preparing for full calculations during the transition period are likely to experience a more efficient and lower-risk compliance process when the TCSH is no longer available.

Don’t forget the tax provision process

For many MNE groups, Pillar Two was initially viewed as a future compliance exercise.

As year 2 approaches, Pillar Two considerations are becoming increasingly relevant to the annual tax reporting cycle. Finance teams should consider whether any Pillar Two developments may affect tax accounting positions, disclosures, governance processes, and audit discussions.

Early engagement between tax teams, finance teams, and auditors will generally result in a more efficient compliance process.

Looking ahead

The year ended 31 December 2024 was largely about understanding the new rules and determining whether transitional relief was available.

The year ended 31 December 2025 represents the next phase of the regime.
The commencement of Australia’s UTPR, the broader rollout of IIR and DMT regimes globally, and the need to assess additional jurisdictions under the Transitional CbCR Safe Harbour rules mean that many MNE groups will find year 2 materially different from year 1.

For MNE groups with a 31 December 2025 year end, the Pillar Two lodgement deadline is 31 March 2027. While this may appear some time away, experience suggests that MNE groups that commence planning early are better positioned to manage data collection, governance requirements, and filing obligations efficiently.

How SW can help

SW’s Pillar Two specialists can assist with:

• transitional CbCR Safe Harbour assessments
• review of year 1 positions and implications for year 2
• jurisdictional charging mechanism analysis
• governance frameworks and documentation for Pillar Two
• preparation and review of GloBE calculations
• lodgement obligations for Australian Pillar Two.

If you would like to discuss the implications of year 2 Pillar Two compliance for your group, please contact your usual SW advisor.

Contributors

Antony Cheung | Associate Director, Tax

The post Pillar Two in year 2 & what’s different from year 1 appeared first on SW Accountants & Advisors.

总览

实务合规指南草案 PCG 2025/D3 概述了 ATO 在过渡时期（2026 年 12 月 31 日或之前开始、2028 年 6 月 30 日或之前结束的财政年度）对申报义务和处罚的过渡性合规办法。

澳大利亚实施了 15% 的全球与国内最低税率（支柱二规则），这与支柱二项下的经合组织全球反税基侵蚀（GloBE）规则保持一致。其对象是受测年度之前的四个财政年度内至少有两个财政年度合并收入≥7.5 亿澳元的大型跨国企业（MNE）集团。支柱二规则自 2024 年 1 月 1 日起适用于澳大利亚。

值得注意的是，自 2025 年 1 月 1 日起，未征低税利润规则可能会使澳大利亚的跨国企业集团成员承担其他集团成员的相关补税。这与前者是否对后者拥有任何所有者权益无关。因此，审计人员可能要求对全球集团 2025 财年的情况开展支柱二分析。

澳大利亚的主要申报义务有哪些？

适用的跨国企业集团必须提交以下材料：

1. GloBE 信息申报表（GIR）– 经合组织计算税务负债的标准化表格。
2. 海外通知表（FNF）– 通知 ATO 海外申报 GIR 的情况。
3. 澳大利亚 IIR/UTPR 纳税申报表（AIUTR）– 根据收入包含规则（IIR）和未充分纳税利润规则（UTPR）评估补税。
4. 澳大利亚国内最低报税表（DMTR）— 对澳大利亚低征税利润进行补税评估。

AIUTR、DMTR 和 FNF 被并入全球与国内统一最低报税表（CGDMTR）。GIR 仍是一项独立的义务。第一年的申报截止日期为财政年度结束后 18 个月，此后为 15 个月。对于以 2024 年 12 月 31 日为财政年度末的跨国企业集团，申报截止日期为 2026 年 6 月 30 日。

重点注意：跨国企业集团的澳大利亚成员必须在澳大利亚履行申报义务，即使集团母公司所在国没有实施支柱二规则。澳大利亚各实体可指定由一家澳大利亚集团实体（称为“指定本地实体”，简称DLE）代表澳大利亚实体提交报税表。

截至本文件发布之日，澳大利亚尚未签署支柱二项下的《关于全球反税基侵蚀信息交换的多边主管机构协议》（MCAA）。在此之前，必须在澳大利亚向 ATO 提交 GIR，即使该 GIR 已在海外提交。

对纳税人的处罚是否会“软着陆”？

在过渡期内，如果跨国企业集团证明自己采取了合理措施遵守有关规定，ATO 将采用“软着陆”办法（即减免罚款）。

以下对这些合理的措施举例说明：

• 相关实施计划和内部政策有记录可循，
• 系统升级和差距分析，
• 积极主动地配合 ATO 和外部顾问，以及
• 及时纠正错误。

此外，在过渡时期，个别无心之失应该不会被处罚。然而，若以事不关己的态度待之，或未按常理谨慎处理，则可能会受到处罚。目前对大型全球实体实施的行政处罚适用于这些情况。

信永中和如何协助？

我们可以通过以下方式协助贵公司实施支柱二项目：

• 就支柱二对贵集团的影响提供咨询意见，
• 专门制定符合贵集团要求的支柱二实施计划，
• 确定并分类集团内的实体，
• 就收费机制的适用提供咨询意见，
• 协助开展过渡性的国别报告安全港计算，以及
• 采用信永中和的 CTS 支柱二软件进行规划、支柱二计算并提交 GIR 和国内报税表。

The post 过渡时期澳大利亚的支柱二义务 appeared first on SW Accountants & Advisors.

Overview

Draft Practical Compliance Guideline PCG 2025/D3 outlines the ATO’s transitional compliance approach for lodgement obligations and penalties during the transition period (fiscal years starting on or before 31 Dec 2026 and ending on or before 30 June 2028).

Australia has introduced a 15% Global and Domestic Minimum Tax (Pillar Two Rules) aligned with the OECD’s Global Anti-Base Erosion (GloBE) Rules under Pillar Two. This targets large multinational enterprise (MNE) groups with consolidated revenues ≥ EUR750 million (AU$1.2 billion or US$820 million) in at least two of the four fiscal years preceding the tested year. The Pillar Two rules apply in Australia from 1 January 2024.

It is noteworthy that effective from 1 January 2025, the Undertaxed Profits Rule may subject an Australian MNE group member to top-up tax related to another group member. This is regardless of whether the former has any ownership interests in the latter. Consequently, auditors might require a Pillar Two analysis for the global group for the 2025 fiscal year.

What are the key lodgement obligations in Australia?

Applicable MNE Groups must lodge the following:

1. GloBE Information Return (GIR) – OECD- standardised form for calculating tax liability.
2. Foreign Notification Form (FNF) – Notifies the ATO of foreign GIR lodgement.
3. Australian IIR/UTPR Tax Return (AIUTR) – Assesses top-up tax under Income Inclusion Rule and Undertaxed Profits Rule.
4. Australian Domestic Minimum Tax Return (DMTR) – Assesses top-up tax on low-taxed Australian profits.

The AIUTR, DMTR, and FNF are consolidated into the Combined Global and Domestic Minimum Tax Return (CGDMTR). The GIR remains a standalone obligation. The returns are due 18 months after the fiscal year end for the first year and 15 months thereafter. For an MNE group with a fiscal year ending on 31 December 2024, the returns are due on 30 June 2026.

Importantly, the Australian members of an MNE Group must fulfil lodgement obligations in Australia, even if the Parent of the Group is in a country without Pillar Two rules implemented. The Australian entities may nominate one Australian Group Entity, known as the Designated Local Entity (DLE), to lodge the returns on behalf of the Australian entities.

As of the date of this document, Australia has not signed the Multilateral Competent Authority Agreement (MCAA) on the Exchange of GloBE Information (GIR MCAA) under Pillar Two. Until that happens, the GIR must be lodged in Australia with the ATO even if one has been lodged overseas.

Is there a “soft landing” in terms of penalties for taxpayers?

During the transition period, the ATO will adopt a “soft-landing” approach (i.e. penalties remitted) if the MNE group has demonstrated that reasonable measures were taken to comply.

Examples of reasonable measures include:

• documented implementation plans and internal policies
• system upgrades and gap analyses
• proactive engagement with the ATO and external advisors and
• timely correction of errors

Furthermore, no penalties should be imposed for isolated or good-faith errors during the transition period. However, gross indifference or failure to take reasonable care may be subject to penalties. Current administration penalties imposed upon Significant Global Entities apply in these circumstances.

How can SW assist?

We can assist with your Pillar Two project implementation by:

• implementing SW’s CTS Pillar Two Software for planning, Pillar Two calculations, and lodging GIR and domestic returns
• advising how Pillar Two will affect your group
• designing a Pillar Two implementation plan tailored to your group’s requirements
• identifying and classifying the entities within the group
• advising on the application of charging mechanisms
• assisting with Transitional CbCR safe harbour calculations

Contributors

Antony Cheung

The post Pillar Two obligations in Australia during the transition period appeared first on SW Accountants & Advisors.

I have extensive experience in international tax matters, helping clients navigate complex global tax structures to achieve the best worldwide tax results. I also support small and medium-sized businesses with their accounting, taxation, and broader business needs, including structuring, budgeting, forecasting, and financial modelling.

My industry expertise spans property and construction, primary production, trades, not-for-profits, professional sports, and professional and legal services.

I am a Fellow of the Taxation Institute of Australia and a Registered Self-Managed Superannuation Fund Auditor.

The post Darren O’Malley, Consulting Director appeared first on SW Accountants & Advisors.

On 12 February 2024, the Treasury released the revised exposure draft (ED) and explanatory materials (EM), collectively referred to as ‘Revised Draft Bill’, proposing to require certain large multinational enterprises (MNEs) to publicly report selected tax information on a country-by-country (CbC) basis. The amendments are proposed to be effective on or after 1 July 2024. 

The amendments builds on the original Draft Bill (April 2023 ED & EM) released as part of the 2022-23 Budget. Read more about our SW transfers pricing experts commentary on the initial announcement.

Key changes under the Revised Draft Bill include:

• a threshold has been established – the reporting obligation for CbC reporting parent is triggered only when the aggregated Australian sourced turnover reaches AUD $10 million for the income year
• disclosure requirements have been scaled back, removing specific items such as effective tax rate, list of intangible assets, and related party expenses
• information will be required on a CbC basis for Australia and specified jurisdictions (subject to ongoing update), and on either a CbC basis or an aggregated basis for the rest of the world.

Who is subject to reporting?

The reporting obligation applies to a CbC reporting parent of a CbC reporting group with an Australian presence (regardless whether it is Australian based or not). It is triggered only if the CbC reporting parent’s Australian-sourced aggregated turnover is AUD $10 million or more for the income year. If a CbC reporting parent’s reporting period is not an income year, it must assume the reporting period is an income year for calculating aggregated turnover.

What should be disclosed?

Under the Revised Draft Bill, a CbC reporting parent is required to publish selected tax information on a strictly CbC basis for Australia and specified jurisdictions, such as Hong Kong and Singapore, while allowing information to be provided on either a CbC basis or an aggregated basis for the rest of the world.

Selected tax information must be sourced from audited consolidated financial statements to ensure the information is reconcilable and verifiable. If not available, the information should reflect what would be shown in such statements had the entity been a listed company.

The below table compares information required under different regimes and summarises relevant information to be disclosed on a CbC basis or an aggregated basis.

A – Aggregated basis
C – CbC basis
★ – Not required under the existing confidential CbC Reporting regime
✤ – New requirements under the Revised Draft Bill

¹ CbC reporting parent is required to disclose the general information.

² Under the EU Directive, only the aggregated revenue needs to be reported, without separating unrelated party and related party revenues.

³ The Commissioner will receive the information in the approved form from the CbC reporting parent, and then make available on an Australian government website.

When is it due?

The Revised Draft Bill, once legislated, is expected to apply to reporting periods commencing on or after 1 July 2024. Submission of the public CbC report will be due no later than 12 months after the end of the relevant income year.

For example, for an entity with a reporting period ending on 31 December, the first reporting period would be 31 December 2025, with the report submission due by 31 December 2026.

The existing confidential CbC reporting obligations and the new public CbC reporting obligations will operate in parallel, but they are distinct and separate reporting regimes.

Penalties for non-compliance

Australian resident entities will be penalised for refusing or failing to comply with their obligation to publish the selected tax information.

A CbC reporting parent is liable to an administrative penalty if the entity fails to publish the required information (including information to correct a material error) on time.

The penalty is 500 penalty units ($156,500 based on the current rate of $313 per penalty unit) for each period of 28 late days or part thereof, up to a maximum of 2,500 penalty units (currently $782,500). Penalty units may increase in future.

How SW can help 

As Australia moves towards greater transparency in tax matters, it is important for MNEs, both Australian-headquartered and foreign-owned with Australian operations, to stay ahead of these changes. SW is committed to providing you with proactive support to navigate these complexities.

Our tax experts can assist with: 

• Impact assessment: Assessing the impact of public CbC reporting on your group.
• Approach planning: Advising on the strategic implications of the additional disclosure requirements (e.g. CbC reporting group’s approach to tax, reasoning for income tax accrued vs income tax due) in your unique circumstances, and helping you prepare for these disclosures.
• Compliance management: Developing and implementing a robust process to ensure seamless compliance with the reporting obligations, minimising the risk of penalties.
• Stakeholder communication: Facilitating effective communication with your foreign CbC reporting parent and other relevant stakeholders to enhance understanding/coordination within your group.

Please reach out to our expert team or your SW representative, if you would like to know more or need assistance.

Contributor

Rowena Ye

The post Revised draft for Australian public country-by-country reporting appeared first on SW Accountants & Advisors.

Saurrav Sood, Practice Leader (SW India), Kunal Mehra, Managing Partner & Co-Founder (SW India), and Yang Shi, Transfer Pricing Director (SW Australia) discussed crucial considerations from the standpoint of transfer pricing. Our expert speakers provided insights from both the Indian and Australian perspectives. The session delivered an insight into strategies for mitigating transfer pricing risks that multinationals can adopt while embarking on business ventures in India and Australia.

Experts

Yang Shi
Transfer Pricing Director
SW 

Rahul Sanghani
Associate Director, Tax
SW

Kunal Mehra
Managing Partner & Co-Founder
SW India

Saurrav Sood
Practice Leader | International Tax & Transfer Pricing
SW India

Contact us

If you have any queries or would like more information, please contact the Marketing team via marketing@sw-au.com.

The post Transfer pricing landscape and challenges | India & Australia perspective appeared first on SW Accountants & Advisors.

The Exposure Draft Bill (the draft Bill), released on 31 March 2023, proposes a new anti-avoidance rule to deny deductions for payments attributed to intangible assets located in low corporate tax jurisdictions. Significantly, the changes do not remove withholding tax from affected payments that are classed as royalties. In some circumstances, payments may therefore be both non-deductible, and subject to Australian withholding tax at rates of up to 30%.

The changes will apply to payments made by significant global entities (SGEs) on or after 1 July 2023. Broadly, SGEs are members of multinational groups with annual consolidated global income of at least AUD 1 billion. The proposed 1 July 2023 start date allows little time to prepare for the impact of the proposed changes.

The draft Bill is one of several measures introduced in the 2022-23 Federal Budget as part of a comprehensive strategy to enhance multinational enterprises’ tax integrity.

Anti-avoidance rule changes

The statutory objective is to discourage SGEs from avoiding income tax by channeling income from the exploitation of intangible assets to low corporate tax jurisdictions. The proposed rule will apply to payments:

• made by SGEs
• in relation to an arrangement where the SGE or an associate acquires or exploits the intangible asset
• where the arrangement results in the recipient (or another associate) generating income in a jurisdiction with low taxes.

A jurisdiction will be classed as a ‘low corporate tax jurisdiction’ if the corporate tax rate is less than 15%.

The rules are also intended to encompass the incurring of a liability or crediting of an amount, without an actual direct royalty payment. This ensures the proposed rules cannot be evaded through indirect payments.

Intangible assets payments

As expected, the proposed law applies to relevant payments made by an SGE directly or indirectly to an associate.

Payments made directly to unrelated third parties are not within the scope of the proposed law unless they are otherwise also indirect payments to an associate.

General definition of intangible assets

In general, the term ‘intangible asset’ is interpreted according to its ordinary meaning. However, the draft Bill proposes an additional definition.

The proposed rules will utilise some of the existing definitions of ‘royalty’ in the current tax legislation, with respect to the use or supply of specific assets. Some examples are:

• intellectual property rights such as trademarks, patents, designs and processes
• knowledge and information pertaining to certain fields such as science, technical and commercial
• in house designed algorithms
• any tapes, visual images or sounds used for broadcasting
• motion picture films.

The proposed definition of intangible asset also encompasses rights or interests in the type of assets mentioned above.  Additionally, further assets may be specified in the regulations.

The proposed rule does not extend to rights related to tangible assets, such as interests in land, or to financial arrangements (as defined in the existing tax legislation). The exclusion from categorisation as intangible assets equally applies to industrial, commercial, or scientific equipment. 

Apportionment

The phrase, ‘to the extent’ in the proposed law contemplates payments of an undissected amount for a bundle of rights or benefits. Apportionment may then be required to allocate part of the payment as relating to the intangible assets. The deduction for that portion of the payment would then be denied.

Several transfer pricing methodologies may be used to apportion payments, however the proposed law is yet to provide guidance on how such apportionment should occur. This appears similar to the potential uncertainty on apportionment of income received in respect of software (albeit relevant to withholding tax).

Low corporate tax jurisdictions

The draft Bill defines a ‘low corporate tax jurisdiction’ as a country in which the lowest corporate income tax rate applicable to an SGE is below 15%. Determining the ‘lowest corporate income tax rate’ of a country may be a complex matter.

Of concern is the fact that jurisdictions which provide tax exemptions for specific types of income may be classed as low tax jurisdictions due to the broad scope of this definition. A country such as New Zealand, which does not generally tax capital gains, may be classed as a low corporate tax jurisdiction.

A Government Minister can also determine that a jurisdiction qualifies as low tax if it has a preferential patent box regime.  This provision is only intended to capture patent box regimes that provide concessional tax treatment without requiring any economic activity to develop the relevant intellectual property in the country providing the patent box treatment.

In making a determination, the Minister may have regard to publications of the Organisation for Economic Co-operation and Development (OECD).

The suggested tax threshold aligns with the global trend towards a domestic minimum tax (DMT) rate of 15% as proposed under the OECD’s Global Anti-Base Erosion (GloBE) Pillar Two initiative. Nonetheless, it exceeds the existing minimum royalty withholding rate of 10% commonly found in Australia’s double taxation agreements. Furthermore, the proposed rate is higher than the 10% rate stipulated in the equivalent legislation of the United Kingdom.

Exploitation of intangible assets

The draft Bill introduces an innovative concept in defining intangible assets to be ‘exploited’. This concept encompasses a wide range of arrangements that go beyond the mere use of the asset. Examples include the use by way of marketing, selling, licensing, distributing, supplying, or engaging in any other activity with the intangible asset. This expanded definition of ‘exploitation’ aims to cover a broad spectrum of arrangements, highlighting the comprehensive scope of activities that may be captured.

The condition will also be deemed as fulfilled if the SGE is granted explicit authorisation to utilise the intangible asset. According to the draft Explanatory Materials, as long as there is a mutual understanding between the parties that allows the SGE to access and utilise the intangible asset, this requirement will be considered met. It should be noted that this condition can still be satisfied even if the permission is not explicitly documented.

The broad definition of ‘exploit’ implies that the threshold for meeting this requirement is relatively low, which means that even ordinary commercial arrangements could potentially fall within its scope. Taxpayers will need to carefully assess the application of the other conditions to determine if the provisions are applicable in their specific situation.

SGE penalties

The Government is also requesting stakeholder views regarding the appropriateness of a shortfall penalty provision to be imposed on SGEs which mischaracterise payments in an attempt to avoid income tax, including withholding tax. Given the onerous penalty regime that already applies to SGEs, the introduction of further specific penalties under the intangible payments rules would seem to be excessive.

How SW can help

Our tax experts can assist with

• analysing arrangements referrable to the use of intellectual property and the likelihood of the measures applying to denied deductions
• analysing the substance of payments, including the extent of apportionment required to determine the part attributable to a right to exploit an intangible asset
• assessing the extent of income from exploiting intangible assets that is derived in a low corporate tax jurisdiction.

SW will be monitoring announcements and will keep you updated as more information becomes available.

Please reach out to the Key Contacts here or your SW contact if you would like assistance determining the impact of the measures on your group, and advice on how your group can navigate the complexities.

Contributors

Tony Principe

Wasi Hussain

Rahul Sanghani

The post Australian Treasury denies SGEs deductions for payment relating to intangibles appeared first on SW Accountants & Advisors.

Ampol Group (Ampol) is an Australian energy company that operates in the fuel and convenience retail sector. Its subsidiaries in Singapore (Ampol Singapore) serve as a trading and shipping arm of the group, sourcing refined products and crude oil from outside Australia to provide secure and cost-competitive supply to Ampol’s customers. Ampol Singapore functions as an offshore procurement hub for Ampol Australia and has over 100 employees as of December 31, 2022.

On 20 February 2023, it was reported that Ampol had reached a settlement with the ATO regarding the tax treatment of earnings by Ampol Singapore from transactions with Ampol Australia.

The settlement covers the transfer pricing outcomes of refined products and crude oil between Ampol Singapore and Ampol Australia from 1 January 2014 to 31 December 2022. It also locks in the tax outcomes of the arrangement for future periods until 2033. The settlement also addresses how Australia’s Controlled Foreign Companies (CFC) regime will apply to the profits of Ampol Singapore.

Transfer pricing is the practice of setting the price for goods and services transferred between related entities within a corporate group. The ATO has been actively enforcing transfer pricing rules to ensure that related entities within a corporate group are charging each other an appropriate price for goods and services.

The CFC regime is designed to prevent Australian companies from using offshore entities to avoid paying Australian tax on foreign profits.

Ampol tax settlement details

The settlement is expected to resolve transfer pricing issues related to Ampol Singapore’s transactions with Ampol Australia and provide clarity on the tax treatment of these transactions going forward.

While full details of the settlement are covered by confidentiality provisions, the outcomes include:

• Ampol will pay an additional $5.6 million in Australian tax on earnings between 2014 and 2021, and $0.1 million in interest. This is on top of the $104.1 million of tax already paid on Ampol Singapore earnings.
• Ampol will pay $48.2 million in Australian tax on Ampol Singapore earnings for the 2022 financial year.
• The ATO has neither imposed penalties on Ampol nor applied anti-avoidance provisions.
• Ampol Singapore has adjusted its functions such that the majority of earnings by Ampol Singapore from transactions with Ampol Australia will be subject to corporate income tax in Australia at 30% rate (effective from 1 January 2023).

Key takeaways from the Ampol tax settlement with the ATO regarding Ampol Singapore

The ATO’s Tax Avoidance Taskforce has been focusing on offshore procurement hubs to prevent profit shifting and excessive pricing of imported goods and services in an effort to reduce tax paid in Australia.

The ATO has raised tax liabilities of $30.6 billion from large public and private groups and multinationals over the period 2016 to 2022, with the Taskforce contributing over 60% of this amount.

The number of disputes resolved via settlements has increased by nearly 10% from 2020 to 2022, with the majority of settlements occurring at pre-audit or audit stage.

The scope of ATO’s independent review in large market disputes that involve transfer pricing issues is now restricted.

Settlement can be a practical solution to reach long-term tax certainty for taxpayers, as seen in the Ampol case.

However, defensible transfer pricing policies and adequate documentation remain critical for taxpayers involving complex or material cross-border related party dealings, such as offshore procurement hubs, to mitigate potential risk of ATO’s compliance actions.

How SW can help

Taxpayers engaging in cross-border related party dealings need to ensure that their transfer pricing policies and documentation are in line with ATO’s expectations to avoid potential disputes that cost enormous time and resources of taxpayers.

With the ATO’s increasing focus on offshore procurement hubs, it is important for taxpayers to stay informed of the latest developments in transfer pricing regulations and seek expert advice where necessary.

To avoid expensive disputes and ensure your transfer pricing requirements and compliance are up to date, reach out to our global transfer pricing specialist or your SW relationship Partner.

Contributor

Elena Guo

The post Ampol settles ATO tax dispute over offshore procurement hub: Key takeaways for transfer pricing compliance appeared first on SW Accountants & Advisors.

SW is proud to be part of the conversation at IMARC for the fifth time, taking the lead on sustainable and equitable futures by sponsoring the Investment Theatre.

With a global focus on the energy transition, key themes at the conference will look at how mining and resources are accelerating the energy transition, the different decarbonisation solutions and strategies available to market, the role of renewables and hydrogen, and the ever growing investment and support for critical and future facing minerals.

Rick Hemphill, John Dorazio and Blayney Morgan will be introducing critical minerals and mining companies to the stage in the Mines & Money Investment Theatre, and the team will facilitate several panels as detailed below.

Panel discussions

Global and Domestic Trends Impacting the Mining Investor and Finance Market

11.55am Wed 2 November | Mines & Money Investment Theatre

Interviewer: Bessie Zhang, Partner, Assurance & Advisory, SW Accountants & Advisors

Interviewees: Owen Hegarty, Executive Chairman, EMR Capital

Jacqueline Murray, Partner, Investment Team Leader, Resource Capital Funds

David Sun, Managing Director, Sinosteel Australia

Top ESG Considerations when Investing and Financing Mining Projects

2.55pm Wed 2 November | Mines & Money Investment Theatre

Interviewer: Matthew Schofield, Director, Head of Corporate Finance, SW Accountants & Advisors

Interviewees: Scot Sobey, Investment Director, Pacific Road Capital

Jamie Strauss, Chief Executive Officer, Digbee

Andrew Irvine, Legal and Corporate Engagement Director, EITI

Predicting Trends in Project Financing and Investing within Mining and Resources

12.05pm Fri 4 November | Mines & Money Investment Theatre

Interviewer: Blayney Morgan, Partner, Assurance & Advisory, SW Accountants & Advisors

Interviewees: Loic Mackosso, Founder and Managing Partner, ARIES Investissements

James Morrison, Managing Director, Regal Resources Royalties Fund

Christofer Catania, Chief Executive Officer, MEC Mining

Connect with the SW Accountants & Advisors team on the IMARC Connect app or in person next week to see how we can #opendoors for your business.

The post International Mining and Resources Conference 2022 appeared first on SW Accountants & Advisors.