After a nearly three-year wait[1], the ATO finalised the risk guideline targeting cross-border related party arrangements (collectively referred to as ‘Intangibles migration arrangements’) involving:

• Migration of intangible assets – ‘Migration’ refers to any restructure or change associated with Australian intangible assets that allows another entity to access, hold, use, transfer or benefit from the intangible assets, and
• Mischaracterisation / non-recognition of Australian activities connected with intangible assets – this includes arrangements relating to the Australian development, enhancement, maintenance, protection and exploitation (DEMPE) activities in connection with intangible assets held offshore.

The Guideline addresses concerns with arrangements:

• under which Australia-led intangibles are transferred, licensed to or otherwise held by an international related party
• lacking the requisite substance to perform or control DEMPE activities and/or assume associated risk and
• where value-adding DEMPE activities remain in the hands of Australian taxpayers.

The Guideline applies from 17 January 2024, and will apply to existing and new arrangements.

The Guideline does not reflect the ATO’s interpretation of tax laws, however serves as a cautionary notice that ATO will focus on scrutinising[2] risky arrangements.

The ATO’s compliance approach

The ATO’s approach to risk assessment is determined by two point-based Risk Assessment Frameworks (RAFs).

RAF Table 1

The below risk factors may trigger risk points for a completed intangible migration during the current year:

• in connection with a restructure or change had associated with intangibles, the Australian entity continues to hold certain economic relationship with the intangibles
• Operational and functional circumstances of the relevant international related party (IRP)o
• tax outcomes of the relevant IRP as well as the Australian entity
• undocumented dealing involving Australian intangible assets / DEMPE activities that are not recognised.  

RAF Table 2

RAF Table 2 becomes relevant where there was no intangible migration completed during the current year. It comprises the below risk factors:

• extent of Australia based DEMP activities in connection with intangible assets owned by an IRP
• operational and functional circumstances of the relevant IRP
• tax outcomes of the relevant IRP
• whether the ongoing intangible arrangement is connected to a past migration (if so, RAF Table 1 needs to be assessed on past migration).

The risk zones / ratings and corresponding compliance approaches are summarised in the table below.

Evidence expectations

Similar to previous drafts, the Guideline continues to place a high bar for evidence and documentation.

The expected evidence focuses on the following aspects:

• evidencing the commercial considerations and business decision-making
• evidencing the legal form and substance of Intangibles migration arrangements
• identifying and evidencing the intangible assets and connected DEMPE activities, and
• evidencing the tax and profit outcomes of Intangibles migration arrangements.

The complexity of taxpayers’ business, the extent to which their Intangibles migration arrangements contribute to that business, and the risk rating of the arrangement will influence the type and level of evidence the ATO expects from them to substantiate the arrangement. However, the Guideline does not serve as substitute for the transfer pricing documentation requirements under Australian tax law.

Examples

Appendix 1 of the Guideline includes 15 examples of Intangibles migration arrangements to illustrate how the RAFs should be applied by taxpayers. Our transfer pricing experts break down and explain these examples here.

Some positive improvements, but still challenging to handle

Compared with PCG 2023/D2, there appears to be some “taxpayer friendly” changes which show that the ATO adopted public feedback during the consultation process. Some positive changes include:

• Introduced ‘Excluded Intangibles Arrangements’ that are not subject to the Guideline – essentially vanilla outbound / inbound distribution arrangement, or low value service arrangement (subject to strict eligibility criteria).
• Expansion of lower end risk zones to White Zone and Blue Zone.
• Reallocation of risk scores – for example, uplifted the point threshold (from 25 to 35) for higher risk zone, and Migration of intangibles, by itself, does not immediately trigger a risk point.
• Providing more scenarios where ‘grouping’ of Intangibles migration arrangements is allowed.

On the other hand, the Guideline remains to place significant challenges and administrative burden on taxpayers:

• The Guideline has very broad application, encompassing scenarios beyond the immediate transfer of assets.  This requires a detailed function and risk analysis to demystify how the Australian entity and its relevant IRP interact in connection with DEMPE activities, regardless of the materiality[1] involved.
• The eligibility criteria for ‘Excluded Intangible Arrangements’ appears to be restricted, and the lack of any direct example for ‘Excluded Intangible Arrangements’ in the Guideline does not help provide confidence in application to the public.
• The Guideline scopes out consideration of other tax aspects such as ‘pricing’ of intangible arrangements. In the RAF, one significant risk trigger is ‘tax outcome’ which focuses on the tax treatment or condition of the IRP.  However, if the pricing is good enough from an Australian perspective, the overall tax risk to the Australian taxpayer could have been lower than that derived from the Guideline.  As such, the risk outcome derived from the RAF, by itself, could be misleading.
• Taxpayers are expected to self-assess their risk based on extensive evidential information, including information possessed by IRPs.  Obtaining intangibles related information or cooperation from overseas could be very challenging, due to confidentiality or other concerns.

Key takeaway for taxpayers

The Guideline’s finalisation highlights the ATO’s focus on tax risks connected to intangible arrangements with offshore related parties. It is relevant to a wide range of Australian taxpayers, regardless where the relevant intangibles are held. The asessment of the relevance and associated risk is not a straightforward process.  It is important for taxpayers to self-assess early and complete these self-assessments before tax returns for the relevant income year are lodged.

For larger taxpayers that are required to complete Reportable Tax Position (RTP) Schedules in the tax return, a new question on Intangibles migration arrangements will need to be completed.  Getting in touch with relevant IRPs early to obtain necessary evidential support is critical for the RTP disclosure.

Regardless of materiality, taxpayers need to ensure sufficient coverage on the arm’s length nature of relevant intangible arrangements is included in its contemporaneous transfer pricing documentation.  All the examples detailed in the Guideline have mentioned transfer pricing as a focus area under the ATO’s compliance approach across all risk categories.

How SW can help

Our experts can assist with:

• further clarification regarding the Guideline
• helping you understand more to what extent your arrangements will be subject to the Guideline
• assessing risk level of your arrangements
• ensuring your RTP disclosures are accurate and supportive
• putting in place transfer pricing documentation to provide a further line of defence for your intangible arrangements.

Reach out to your SW advisor for support from our specialist tax team.

Contributors

Elena Guo

[1] With initial PCG 2021/D4 released in May 2021, followed by PCG 2023/D2 released in May 2023.

[2] Including the potential application of the general anti-avoidance, transfer pricing, capital gains tax rules etc.

The post ATO issues final risk guideline on Intangibles migration arrangements appeared first on SW Accountants & Advisors.

Introduction to SMSF | 自我管理退休金簡介（國語中字）

Treatment of overseas income | 移民澳洲如何處理海外收入（國語中字）

Tax issue of investment in Australia properties | 澳洲房地產投資的稅務問題（粵語中字）

Family Trust structure in Australia | 詳解澳洲家族信託架構（粵語中字）

Transfer Pricing | 轉讓定價（國語中字）

Setting up a business | 在澳洲開設企業（國語中字）

Migration Visa | 移民簽證（英語中字）

Investing in Australia | 澳洲投資（中文字幕）

Capital Gains Tax | 資本增值稅（中文字幕）

Tax issues of principal place of residence | 主要居住地稅務問體（中文字幕）

Education in Australia | 澳洲教育（中文字幕）

Audit requirements in Australia | 澳洲審計要求（中文字幕）

Introduction to Australian taxation | 澳洲稅務需知（中文字幕）

Tax Residency | 澳洲稅務居民身份（中文字幕）

Reach out to our experts to start the conversation today! 如果您有任何移民相關的問題請聯絡我們。

The post Migration video series | 移民澳洲系列 appeared first on SW Accountants & Advisors.

从2021年7月1日起，SIV合规基金的基金经理需要任命一名外部审计师，每年按照合规投资框架对基金进行审计，包括新兴公司部分和平衡投资部分。

基金经理和移民代理也将了解到，重大投资者类别和投资者类别签证的申请人必须按照合规投资框架进行资金投资。

根据《2015年移民（IMMI 15/100：合规投资）工具》的规定，内政部最近对相关要求做出了一些修改，其中包括对合规资产的修改，以及对合规投资框架中的新兴公司部分和平衡投资部分进行年度合规审计。

SIV申请人–您需要做什么？

所有在2021年7月1日之后获提名申请重大投资者签证或投资者签证的申请人都要在其签证申请中附上审计报告，以证明在截至2022年6月30日的一年中以及往后每一年，他们所投资的基金符合合规投资框架的规定。基金经理将提供这些文件。

在没有合规性审计报告的情况下，签证申请被批准的可能性非常小。

SIV基金经理和移民代理——您需要了解什么？

信永中和澳大利亚如何帮助您

在我们与整个行业的基金经理广泛合作的基础上，信永中和澳大利亚的专业审计团队完全了解签证申请人、移民代理和基金经理的适用审计要求，并拥有丰富的相关审计工作经验。

我们的SIV基金审计服务为SIV合规基金提供高效率且有实效的审计，以确保这些基金符合《2015年移民（IMMI 15/100：合规投资）工具》所规定的新兴公司和平衡投资部分。

请联系本事务所的SIV审计专家穆芮内和艾汝谧咨询。

基金管理领域的税务专家包括：

池澜滨、谭赛蒙、欧斯迪

The post 重大投资者签证基金 – 合规审计 appeared first on SW Accountants & Advisors.

From 1 July 2021, fund managers of SIV compliant funds are required to appoint an external auditor to annually audit the fund with the Complying Investments Framework for the emerging companies’ component and the balancing investments component.

As fund managers and migration agents will know, visa applicants for the significant investor stream and the investor stream visas are required to invest their funds in accordance with the Complying Investments Framework.

The department of Home Affairs recently made several changes to the requirements, as stipulated in the Migration (IMMI 15/100: Complying Investments) Instrument 2015. These included changes to complying assets and for the emerging companies component and the balancing investments component of the complying investments framework to be audited annually for compliance.

SIV applicants – what do you need to do?

All applicants who were nominated to apply for a Significant Investor Visa or an Investor Visa after 1 July 2021 will be required to attach audit reports to their visa application to show that for the year ended 30 June 2022 and annually thereafter, the fund/(s) they have invested in comply with the complying investments framework. These will be obtained from their fund managers.

It is highly unlikely that a visa application will be approved without the compliance audit report.

SIV fund manager & migration agents – what do you need to know?

How SW can help

Building on our extensive work with fund managers across the sector, the SW specialist audit team fully understands the audit requirements as applicable to visa applicants, migration agents and fund managers, and has significant experience with these audits.

Our SIV fund audit service provides efficient and effective audits for SIV compliant funds to ensure these comply with the emerging companies and balancing investments components as required by the Migration (IMMI 15/100: Complying Investments) Instrument 2015.

Reach out to our SIV Audit experts, Rene Muller and Rami Eltchelebi, to start the conversation.

Fund management tax experts include:

Abi Chellapen, Simon Tucker, Stephen O’Flynn

The post Significant Investor Visa Funds – compliance audit appeared first on SW Accountants & Advisors.

Recognising that the growth of the Business Innovation and Investment Program (BIIP) is continuing to support Australia’s post-COVID-19 recovery through the investments and other economic contributions of visa applicants, the Federal Government has exempted all visas in the BIIP class with regard to travel restrictions to Australia. Additionally, late in 2020 the Department of Home Affairs announced that it would fast track Significant Investor Visa (SIV) and Investor Visa (IV) applications.

In 2020, a review of the BIIP program visa classes saw a reduction in the number of visa streams from nine to four, which included the cancellation of the Premium Investor, Significant Business History and Venture Capital Entrepreneur visas. It is expected that these changes will lead to an increased interest in the refurbished 188 SIV and IVs.

Overall, the changes are seen as being positive, with the attractive features and flexibility of BIIP continuing to prove popular to applicants.

What has changed for SIV and IV classes?

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Alex Hawke, announced in May that the “Increased investment thresholds and the adjustment of investment ratios to focus more on venture capital and private growth equity will better support innovation and emerging enterprises in Australia”.

From 1 July 2021 the following CIF ratios will apply to both the Investor and the Significant Investor Visa streams:

• 20 per cent venture capital and Private Growth Equity funds (VCPE)
• 30 per cent funds investing in emerging companies
• 50 per cent in balancing investments
• Improvements to the Complying Investment Framework will include:
  • A clearer definition of Fund of Fund (FoF)
  • Applicants will be given 6 months to enter into their VCPE agreement, in lieu of the previously allowed 12 months.
  • A tightening of Emerging companies rules to close previous loopholes.
  • Fund managers will need to complete an annual audit for all of the funds they manage. The managers we work with are all committed to these changes including the annual audits.

A summary of these changes implemented from 1 July 2021 can be accessed here.

How we can help

For SIV and IV applications made between 1 July 2015 and 1 July 2021, the old rules will remain in place and the SW advisory team continues to provide advice and assist applicants and visa holders to manage and implement SIV and IV portfolios.

If you are considering applying under the post 1 July 2021 rules, our team can provide complete advice and assistance for:

• Visa applications
• Complying investments
• Financial review and wealth considerations
• Investment advice
• Relocation and concierge services
• Tax and accounting structure and services

Important note regarding Significant Investor Visa – Advice from ASIC

It has been found that some SIV applicants have been victims of serious financial fraud in Australia. Australia’s corporate regulator ASIC (the Australian Securities and Investments Commission) has expressed growing concern to the Department of Home Affairs (DHA) about investment referrals to particular managed fund products when visa applicants are being provided with immigration assistance.

Where a registered migration agent (RMA) or Australian legal practitioner refers a SIV applicant to a managed fund product, the referral might involve the RMA or Australian legal practitioner providing financial product advice under the Act.

With a message originating from the Immigration Integrity and Assurance Branch of the Department of Home Affairs, the Office of Migration Agents Registration Authority (OMARA) emailed all RMAs on 23 July to reiterate who can, and cannot, provide financial advice to Managed Fund Products under Australian law.

It stipulates that a person cannot provide financial advice in Australia unless the person holds an Australian Financial Services License (AFSL).

ASIC recommends that you encourage SIV applicants to seek independent financial advice and, as far as possible, that you refer SIV applicants only to fund managers with robust risk and governance frameworks.

The BIIP is a world class program, competing with other investment visa programs around the world to attract highly sought after investment capital. This reminder from OMARA and ASIC seeks to help to protect investors and enhance the integrity of the BIIP and assist visa applicants to obtain better quality investment advice that will lead to better investment outcomes.

How we can help

SW Wealth holds an authorised AFSL registration with ASIC and can assist with investment opportunities and advice. We can be found on the Financial Advisors Register, published by ASIC, here on the MoneySmart website. SW is an Australian owned accounting and advisory firm with an 85+ year history and provides a full range of wealth management and business advisory services, tax, assurance and corporate finance.

Contacts

Daniel Minihan

E dminihan@sw-au.com

Natasha Wood

E nwood@sw-au.com

The post Investor Visa update & ASIC advice for SIV applicants appeared first on SW Accountants & Advisors.

This is devastating news for many, and has caused a variety of issues for those SIV holders who have been impacted by these investments which that need to be considered and actioned in a timely manner. In some instances, there is little time to reorganise these affairs, and many clients have shared with us that they have limited time to find a solution.
In response to these concerns, ShineWing Australia has put together a panel of experts to assist impacted individuals to help provide them with a ‘full-circle’ solution comprising legal, migration and financial help in one place.
Seeking out qualified, registered and independent migration and investment advice is particularly important at all times. This will ensure that any conflict of interest on the advisor side is removed, and that you are being informed of options that are right for your situation before making investment choices.

Migration

ShineWing Australia has highly experienced migration agents with particular expertise in assisting clients from the Asia-Pacific region to obtain an Australian visa. We advise on many different visa classes according to individual circumstances and personal needs, including SIVs.

As Registered Migration Agents (RMA) we act independently, and we also adhere to the Code of Conduct set out by the Office of the Migration Agents Registration Authority.

If you are a current SIV holder and have been affected by breaches of complying funds, and you think it may have jeopardised your visa status, we will be able to offer you a free consultation on your visa and investment status. Our services areas are listed below but we are happy to assist in other visa matters as appropriate.

Financial Services

ShineWing Australia’s Financial Planning and Debt Advisory services are provided by Authorised Representatives of ShineWing Australia Wealth Pty Ltd AFSL/ACL 236556.

When investing as an SIV or otherwise, it is important to perform sound due diligence on your intended investment target and ensure:

• there are no conflicts of interest

• the investment vehicle has a proven track record of underlying managed funds

• it has a strict compliance regime

• it has the correct diversification per section of the SIV framework

• the fund or investment vehicle is registered and compliant with ASIC

• that the fund is backed by independent advice and focused on asset quality, as opposed to a focus on the sale of a particular product.

Managing the wealth and private affairs of business owners, families and high net worth individuals requires a deep appreciation of individual circumstances, and a detailed understanding of immediate needs and future financial objectives.

Private Clients and Wealth covers the following services:

For an immediate response and for the services below, our panel members will be able to help you with the following:

If you require assistance with one or more of the above areas, and would like to discuss your options in a private, confidential and free of charge consultation with one of our panel experts, please get in touch in one of the following ways.

SIV enquiries

Click here to contact our experts today.

Email us via SIVsupport@shinewing.com.au.

Follow us on WeChat for the latest updates and webinars.

The post Migration Update – Expert Assistance for SIV holders and Investors appeared first on SW Accountants & Advisors.

A number of recent articles in the Australian press have discussed the liquidation or voluntary administration of several large funds that were specifically created as complying funds for the SIV program.

There are a variety of issues that people who have been impacted by these investments need to consider or action, and many have shared that they have limited time to find a solution.

ShineWing Australia has prepared a panel of experts to provide you with a full range of options, in one place, to assist you with decisions on how to move forward. Our team, and those of our partner firms, have already assisted several clients who have been affected in these matters, including:

Legal solution:
An investor approached us to discuss their legal options to recoup money that had not been returned. We advised a strategic solution through Australia’s legal system and assisted in a favourable judgement by the Supreme Court.

Visa solution:
A client had held their Subclass 188c Visa holder for 2 years before finding out recently that their Complying Fund had been breached. We immediately notified the Department of Home Affairs who granted us an extension to the 30 day investment switching rule and allowed our partner legal team to investigate the matter while the SIV holder and their family were able to continue their stay in Australia.

Our panel members will be able to help you with the following:

If you require assistance with one or more of the above areas, and would like to discuss your options in a private, confidential and free of charge consultation with one of our panel experts, please get in touch in one of the following ways.

SIV enquiries

Click here to contact our experts today.

Email us via SIVsupport@shinewing.com.au.

Follow us on WeChat for the latest updates and webinars.

The post Expert assistance for SIV holders appeared first on SW Accountants & Advisors.