Introductory Info
Date introduced: 20 September 2018
House: House of Representatives
Portfolio: Treasury
Commencement: Various dates, as set out in this Digest.
Purpose of
the Bills
The purpose of the Treasury Laws Amendment (Black Economy
Taskforce Measures No. 2) Bill 2018 (the Black Economy Bill) is to:
- amend
the Income Tax
Assessment Act 1997 (ITAA97) to deny an income tax deduction for
certain payments where the payer has not complied with their withholding obligations
- amend
Schedule 1 of the Taxation
Administration Act 1953 (TAA) to introduce reporting obligations
on entities that have an Australian Business Number (ABN) and provide road
freight, information technology or security, investigation or surveillance
services and engage other entities to perform those services on their behalf
and
- amend
the Excise Act
1901 to establish a framework to make excise duty on tobacco due and
payable at the time of manufacture rather than being subject to deferral
arrangements.
The purpose of the Excise Tariff Amendment (Collecting
Tobacco Duties at Manufacture) Bill 2018 (the Tobacco Duties Bill) is to amend
the Excise
Tariff Act 1921 and its Schedule to enable the calculation of excise on
tobacco products manufactured in Australia under the proposed new framework
established by Schedule 3 to the Black Economy Bill.
In this Bills Digest the Treasury Laws Amendment (Black
Economy Taskforce Measures No. 2) Bill 2018 is referred to as ‘the Black
Economy Bill’ and the Excise Tariff Amendment (Collecting Tobacco Duties at
Manufacture) Bill 2018 is referred to as ‘the Tobacco Duties Bill’. The phrase
‘the Bills’ is used when they are referred to together.
Commencement
The Black Economy Bill commences as follows:
- Sections
1 to 3 commence on Royal Assent
- Schedule
1 and Schedule 3 commence on the first 1 January, 1 April, 1 July or 1 October
to occur after the day of Royal Assent and
- Schedule
2 commences on the later of:
The Tobacco Duties Bill commences as follows:
- Sections
1 to 3 commence on Royal Assent and
- Schedule
1 commences at the same time Schedule 3 to the Treasury Laws Amendment
(Black Economy Taskforce Measures No. 2) Act 2018 commences.
Structure
of the Bill
The Black Economy Bill is divided into three Schedules:
- Schedule
1 amends the ITAA97 to deny an income tax deduction for payments where
the payer has not complied with their withholding obligations
- Schedule
2 amends Schedule 1 of the TAA to introduce reporting obligations on
entities that provide road freight, IT or security, investigation or
surveillance services and engage other entities to perform those services on
their behalf and
- Schedule
3 amends the Excise Act to establish a framework to make excise duty on
tobacco due and payable at the time of manufacture.
Schedule 1 of the Tobacco Duties Bill amends the Excise
Tariff Act and its Schedule to enable the calculation of excise on tobacco
products manufactured in Australia.
Background
Black Economy Taskforce
The proposed measures contained in the Bills were
announced by the Government in the 2018–19 Federal Budget and form part of the
Government’s response to the Black Economy Taskforce’s (the Taskforce) final report:
Black
Economy Taskforce: final report—October 2017 (Final Report).[1]
The Taskforce was chaired by Michael Andrew (the current
Chair of the Board of Taxation) and was established in December 2016 to develop
multi–pronged policy response to combat the black economy in Australia.[2]
The Taskforce’s Final Report was provided to the Government
in October 2017 and publicly released with the 2018–19 budget.[3]
The release was also accompanied by the Government’s response Tackling
the Black Economy: Government Response to the Black Economy Taskforce Final
Report (Government Response).[4]
The Treasury Laws
Amendment (Black Economy Taskforce Measures No. 1) Act 2018, which
passed the Parliament in September of this year, implemented some of the recommendations
contained in the Taskforce’s Black
Economy Taskforce: interim report–March 2017 including:
- banning
the production, distribution, possession and use of electronic sales
suppression tools and
- introducing
reporting obligations on entities that provide courier or cleaning services and
engage other entities to perform those services on their behalf.[5]
Size of the black economy
There is no internationally agreed definition of the black
economy and definitions vary within Australia. According to the Taskforce it
generally covers activities which take place outside the tax and regulatory
systems involving both legal and illegal activities.[6]
In 2012, the Australian Bureau of Statistics (ABS)
estimated that ‘underground production’ or the ‘cash economy’ accounted for
1.5% of Australia’s Gross Domestic Product (GDP).[7]
According to the Taskforce, this amounted to approximately $25 billion.[8]
Earlier this year KPMG estimated the total, annual, aggregate tax gap including
losses to Pay As You Go (PAYG) income tax, GST and
self-assessed personal income tax to be $5.8 billion.[9]
In its Final Report the Taskforce stated that the black
economy is larger than estimated by the ABS in 2012 and could be as large as 3%
of GDP—in 2015–16 this equated to $50 billion.[10]
The Taskforce also considered that it is likely that certain elements of the
black economy are continuing to grow as a result of a combination of ‘strong
incentives, poor transparency and limited enforcement’.[11]
Further information on the black economy, including the
drivers, consequences and measures announced in the 2018–19 budget aimed at
addressing the black economy can be found in the Parliamentary Library’s Budget Review
2018–19 under the heading ‘Targeting the black economy’.[12]
Taskforce recommendations
Denying a deduction to
non-compliant payers
In its Final Report, the Taskforce recommended removing
the tax deductibility of payments that are non-compliant with a taxpayer’s
withholding obligations.[13]
This recommendation forms part of the Taskforce’s analysis of practices that
facilitate participation in the black economy and ways in which such behaviour
can be prevented both through the use of incentives and deterrents.[14]
The practice of denying a business a tax deduction for
failing to comply with their withholding obligations may encourage compliance
with the withholding regime. However, the Taskforce acknowledged that the
ability to claim a deduction is essentially a ‘loophole’ which ‘should be
closed’—this is because the issue is likely only to arise where the entity has
been audited by the Australian Taxation Office (ATO) and the relevant
deductions as well as any underreported income are reassessed.[15]
In the absence of effective enforcement activity, it is
difficult to see how the measure will facilitate compliance where the business already
operates wholly or partly outside the tax system, for example by hiring
employees ‘off-the-books’ or engaging contractors at a lower rate with the
understanding that no tax will be withheld and their details will not be
reported to the ATO. In this respect, Deloitte, a tax advisory firm has noted:
What these provisions will fail to capture are those
payments completely unreported as expenses or paid partly within the payroll
system and partly out of the system. These businesses may still remain
operating outside the legitimate economy until either the ATO or other
regulators commence compliance activities or an organic or regulatory shift to
electronic payments forces a change in behaviour (making it more difficult to
hide both income and cash payments).[16]
[Emphasis added].
The Taskforce was alive to this issue and considered that
the proposed measures only really affect those businesses that are ‘caught
doing the wrong thing’ and to this end, it recommended ‘that the measure be
accompanied by appropriate detection and enforcement mechanisms’.[17]
Extending the taxable payment
reporting regime
Schedule 2 of the Black Economy Bill is consistent with
the Taskforce’s Final Report which recommended that the taxable payments
reporting regime be extended to ‘high-risk sectors, including security
contractors, road freight transport, IT contractors, owner-builders and home
improvements from 1 July 2018’.[18]
According to the Taskforce’s Final Report, the ATO advised the Taskforce that ‘non-lodgment
and/or under-reporting of income by contractors is high’ in the security
services, IT and road freight industries.[19]
While alternative options such as imposing withholding
taxes have in the past been suggested as more effective ways of securing
Commonwealth revenue,[20]
the Taskforce considers that a reporting regime is preferable because
withholding taxes ‘introduce greater compliance burdens and substantially
affect cash-flows’.[21]
The Taskforce also recommended that reporting obligations
should be removed once compliance rates reach an ‘acceptable benchmark’.[22]
Domestic Manufacture of Tobacco
The Taskforce recommended that imported tobacco products be
taxed at the time they enter an Australian port rather than, as was the case
under the previous arrangements, taxing them at the time they leave a licenced
warehouse in Australia.[23]
The Customs
Amendment (Collecting Tobacco Duties at the Border) Act 2018, which
passed the Parliament in October of this year, gave effect to this measure by
removing the ability of importers to defer taxation by using warehousing
arrangements.[24]
Schedule 3 to the Black Economy Bill and Schedule 1 to the
Tobacco Duties Bill ensure consistent treatment between imported and domestically
manufactured tobacco products by applying excise at the time the tobacco is
manufactured ‘rather than deferring liability until the time the goods are
entered or delivered for home consumption’.[25]
Although there are cases of illegal domestic production of tobacco in Australia,
there are currently no entities in Australia that are licenced to manufacture
or produce tobacco.[26]
Committee
consideration
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Bills.[27]
Senate Standing Committee for the Selection
of Bills
The Senate Standing Committee for the Selection of Bills
recommended that the Bills not be referred to a committee for inquiry.[28]
Policy
position of non-government parties/independents
At the second reading stage, the Australian Labor Party
supported the passage of the Bills, Andrew Leigh MP (Shadow Assistant
Treasurer) stating ‘Labor will be supporting these bills which, in the main,
put in place sensible, uncontroversial changes aimed at cracking down on the
black economy’.[29]
Position of
major interest groups
The proposed measures contained in Schedule 1 and Schedule
2 to the Black Economy Bill were released by Treasury as Exposure Drafts in
July 2018.[30]
At the time of writing, Treasury had not publicly released the submissions on
the Exposure Drafts, however a limited number of stakeholders have made their
submissions publicly available or have otherwise publicly expressed a view on
different aspects of the Bill.
In its submission to Treasury, the Australian Small
Business and Family Enterprise Ombudsman (ASBFEO) did not support the proposed
measure now contained in Schedule 1 to the Black Economy Bill on the basis that
the measure creates a further barrier for businesses to ‘catch up’ and comply
with future obligations where they have fallen behind.[31]
Notwithstanding this, it should be noted that businesses will still receive a
deduction if they voluntarily disclose their mistake to the ATO prior to them
being notified by the ATO that their tax affairs are being investigated.[32]
In relation to the proposed expansion of the taxable payments reporting system (TPRS),
the ASBFEO expressed concern more generally about the capacity of small
business owners to interpret and comply with regulation.[33]
Self-Employed Australia, a not-for-profit association advocating
for independent contractors and the self-employed, opposes Schedule 1 of the
Black Economy Bill for a variety of reasons, including that it considers that
the ATO already has sufficient powers to ensure compliance with the withholding
provisions.[34]
Financial
implications
Schedule 1
According to the Explanatory Memorandum, Schedule 1 to the
Black Economy Bill ‘is estimated to have a small unquantifiable gain to revenue
over the forward estimates period’.[35]
Schedule 2
Schedule 2 to the Black Economy Bill ‘is estimated to have
a net gain to the budget of $545.8 million over the forward estimates
period’ in underlying cash balance terms.[36]
Although a Regulation Impact Statement was not produced by Treasury, it estimates
an average annual regulatory cost to business to be $4.2 million.[37]
Schedule 3
The Explanatory Memorandum states that the ‘whole package
of combatting illicit tobacco reforms is estimated to result in a net gain to
the budget of $3.6 billion over the forward estimates period’. However, as stated
in the Explanatory Memorandum, there are currently no entities in Australia
that are licenced to manufacture or produce tobacco.[38]
Further, and as noted by the Parliamentary Library in its Budget Review
2018–19 under the heading ‘Tobacco’, the majority of the $3.6
billion appears to be derived by bringing forward the point of taxation and applying
customs duties to tobacco products already stored within warehouses.[39]
As a result of this measure, Treasury estimates an average
annual regulatory reduction to business of $198,931.[40]
Statement
of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bills’ compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[41]
In particular the Government considers:
- Schedule
1 of the Black Economy Bill is compatible with human rights as it does not
engage any applicable rights or freedoms[42]
- Schedule
2 of the Black Economy Bill engages the prohibition on arbitrary or unlawful
interference with privacy contained in Article 17 of the International
Covenant on Civil and Political Rights (ICCPR). However, the
Government considers that the Black Economy Bill is consistent with Article 17
of the ICCPR on the basis that its engagement of the right to privacy
will neither be unlawful nor arbitrary[43]
- Schedule
3 of the Black Economy Bill and Schedule 1 of the Tobacco Duties Bill engage
the prohibition on arbitrary or unlawful interference with privacy contained in
Article 17 of the ICCPR. However, the Government considers that the
Bills are consistent with Article 17 of the ICCPR on the basis that their
engagement of the right to privacy will neither be unlawful nor arbitrary.[44]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights
considered that the Bills did not raise any human rights concerns.[45]
Key issues
and provisions
Schedule 1—denying a deduction to
non-compliant withholders
Background
Deductions
A taxpayer is generally entitled to deduct any loss or
outgoing incurred in gaining or producing their assessable income or carrying
on a business for the purpose of gaining or producing their assessable income—these
are known as ‘general deductions’.[46]
The tax law also specifically lists other amounts that a taxpayer is entitled
to deduct from their assessable income—these are known as ‘specific
deductions’.[47]
Among other entitlements, businesses are generally entitled to claim a
deduction for salaries and wages paid to their workers as well as for payments
to contractors engaged by the business.[48]
Various provisions of the tax laws also prevent a taxpayer
from deducting amounts, or limit the amount a taxpayer would otherwise be
entitled to deduct.[49]
Division 26 in Part 2-5 of the ITAA97 contains some of the amounts that
a taxpayer cannot deduct, or cannot deduct in full against their assessable
income, for example penalties incurred under an Australian or foreign law.[50]
Schedule 1 to the Black Economy Bill amends Division 26 to deny an income tax
deduction for certain payments where the payer has failed to comply with their
withholding and reporting obligations under the tax laws.[51]
PAYG withholding
The Pay-As-You-Go (PAYG) withholding system is contained
in Part 2-5 of Chapter 2 in Schedule 1 of the TAA. Division 12 of Part
2-5 of Schedule 1 of the TAA imposes an obligation on an entity (‘a
payer’) who makes particular types of payments, known as withholding payments,
(for example, the payment of salary or wages to an employee) to withhold an amount
from the payment and remit it to the ATO.[52]
A taxpayer is entitled to a credit for the amount that is withheld
and remitted to the ATO and it is applied against their tax liability once their
tax return is submitted—any excess credit is refunded.[53]
This system ensures the efficient and timely recovery of Commonwealth revenue
over the course of a financial year and facilities taxpayer engagement and compliance.
It is an offence to fail to withhold where required to so
under Division 12 of Part 2-5 of Schedule 1 to the TAA and
administrative penalties equal to the amount required to be withheld may also
be imposed.[54]
An entity that is required to withhold an amount is also
required under section 16-150 of Schedule 1 to the TAA to notify
the ATO of the amount on or before the day on which the amount is due to be
paid, even if the amount is a ‘nil amount’.[55]
Section 389-5 contains the corresponding reporting obligations that must be
complied with as a result of the introduction of Single Touch Payroll (STP).
Broadly, STP enables a business to report and comply with their taxation
reporting obligations at the same time that their payroll is being processed.[56]
Proposed changes
Proposed subsection 26-105(1) of the ITAA97 prevents
a taxpayer from claiming a deduction in relation to certain withholding payments
if the payer was required to withhold an amount and failed to do so, or the
payer was required to notify the ATO of the amount under section 16-150 or
section 389-5 of Schedule 1 to the TAA, but failed to do so.[57]
The withholding payments that proposed subsection
26-105(1) of the ITAA97 apply to are:
- a
payment of salary, wages, commission, bonuses or allowances to an employee
- a
payment for remuneration of company directors (directors’ fees)
- a
payment made to a religious practitioner[58]
- a
payment made to an individual under a labour hire arrangement and
- a
payment made for a supply to another entity carrying on an enterprise in
Australia where that entity does not quote or misquotes their ABN.[59]
While section 12-190 of Schedule 1 to the TAA also applies to require
payers to withhold where a supply of goods is made, proposed subsection
26-105(3) excludes both a supply of goods and a supply of real property
from the scope of the proposed measure.
The taxpayer will only be denied a deduction if they fail
to withhold an amount at all, rather than failing to withhold the
correct amount.[60]
A taxpayer will also be denied a deduction if they fail to
comply or fail to purportedly comply with their reporting obligation. The
Explanatory Memorandum provides the following example of where a taxpayer
‘purports to comply’:
Similarly, purporting to comply with the reporting
obligations by notifying an incorrect amount will not affect the entitlement to
a deduction. If, because of an error, the amount reported does not reflect
the amount required to be withheld or the amount actually withheld (if those
amounts are different), the deduction is maintained. Provided an amount is
withheld and a notification is made, there is an opportunity to correct any
remaining contraventions in respect of the amount or the payment of the amount.[61]
(Citations omitted and emphasis added)
This approach is justified by the Explanatory Memorandum
on the basis that it is the ‘total failures to withhold’ that ‘represent the
most significant risk to government revenue’.[62]
The Tax Technical website noted that Schedule 1 could operate ‘harshly’ where a
payroll agent (widely used by business) fails to withhold and does not notify
the ATO.[63]
The taxpayer does have the opportunity to remedy this by voluntarily disclosing
the error (if it is known to them) before the ATO notifies them that their tax
affairs are being investigated.[64]
The reporting obligations that proposed subparagraph
26-105(1)(b)(ii) of the ITAA97 refers to are those contained in
section 16-150 and section 389-5 of Schedule 1 to the TAA. As noted in
the background above, section 16-150 of Schedule 1 to the TAA imposes an
obligation on an entity that is required to withhold an amount to notify the
ATO of the amount on or before the day on which the amount is due to be paid,
even if the amount is a ‘nil amount’.[65]
Subsection 389-5(1) of Schedule 1 to the TAA requires same-day reporting
for those withholding payments listed above except for payments made under
labour hire arrangements, however such payments can be reported voluntarily using
STP.[66]
A taxpayer is not required to report under section 16-150 if they report under
section 389-5.[67]
Non-cash benefits
Under subsection 14-5(1) of Schedule 1 to the TAA an
entity must pay an amount to the ATO before providing a non-cash
benefit[68]
to an entity where the payer would have otherwise been required to withhold
under the PAYG withholding provisions if the benefit was instead paid as money.[69]
The object of the provisions is to ensure consistent withholding treatment
between the payment of non-cash benefits and the payment of cash benefits.[70]
This ensures that entities cannot avoid withholding obligations by providing
non-cash benefits instead of money.[71]
Where an entity is required to pay an amount to the ATO
for a non-cash benefit under Subdivision 14-A of Schedule 1 to the TAA, the
entity must notify the ATO of the amount on or before the day on which the
amount is due to be paid.[72]
Proposed subsection 26-105(2) of the ITAA97 prevents
a taxpayer from deducting a non-cash benefit in relation to the withholding payments
discussed above if, before providing the benefit, the taxpayer fails to comply
or fails to purportedly comply with the notification requirements under section
16-150 of Schedule 1 to the TAA—that is, a deduction will be denied if the
taxpayer is obliged to notify the ATO of the amount withheld in relation
to the non-cash benefit provided but fails to do so, or fails to purportedly do
so.[73]
The withholding provisions that proposed subsection
26-105(2) of the ITAA97 apply in relation to are the same as those
in proposed subsection 26-105(1) (stated above).[74]
Exceptions
Nil-amounts
Both proposed subsections 26-105(1) and (2) of
the ITAA97 do not apply if the amount required to be withheld or paid to
the ATO (as the case may be), is a nil amount.[75]
Accordingly, while an entity still has an obligation to report such amounts to
the ATO, they will not be denied a deduction under the proposed amendments for
failing to do so.
Incorrectly characterising an
employee as a contractor
Section 12-35 of Schedule 1 to the TAA requires an
entity to withhold an amount from salary, wages, commission, bonuses or
allowances paid to an individual as an employee.
Under section 12-190 of Schedule 1 to the TAA
a payer must withhold an amount from a payment it makes to another
entity for a supply that the other entity has made, or proposes to make,
to the payer in the course or furtherance of an enterprise carried on in Australia
by the other entity where no exception applies.[76]
Two of the ‘exceptions’ that apply so that withholding is not required include:
- where
a supplier’s ABN is quoted—when the payment is made the other entity has quoted
its ABN on an invoice or some other document relating to the supply[77]
- where
a supplier’s ABN is purportedly quoted—when the payment is made, the other entity
has provided the payer with an invoice or other document purporting
to quote the other entity’s ABN and
- the
other entity does not have an ABN or the invoice or other document does not in
fact quote the other entity’s ABN and
- the
payer has no reasonable grounds to believe that the other entity does not have
an ABN, or that the invoice or other document does not quote the other entity's
ABN.[78]
Similar exceptions also exist where the supply is made
through an agent where the agent correctly quotes their ABN or the agent
purports to quote their ABN and the payer has no reasonable grounds to believe
that the agent does not have an ABN.[79]
Proposed subsections 26-105(1) and (2) of
the ITAA97 deny a deduction where the payer fails to comply with their
obligations under either section 12-35 or section 12-190 of Schedule 1 to the TAA.[80]
This could result in a situation where an employee is incorrectly characterised
by the payer as a contractor and accordingly, the payer complies or purports to
comply with their obligations under section 12-190 of Schedule 1 to the TAA
(about contractors) when they should have complied with section 12-35 (about
employees) instead.
Without an exception, the employer would breach proposed
subsections 26-105(1) and (2) and would be denied a deduction. To
remedy this, proposed subsections 26-105(5) and (6) mirror
the ‘exceptions’ which are used in section 12-190 of Schedule 1 to the TAA
(where no ABN quoted) and apply them to proposed subparagraphs 26-105(1)(a)(i)
regarding payments to employees and 26-105(2). The exception is
justified in the Explanatory Memorandum as follows:
The Government recognises there are situations where an
employer honestly believes their employees are acting as contractors — and has
complied with the no ABN withholding rule that would apply in that scenario —
but this position is not upheld by the Commissioner. The amendments do not deny
a deduction in such situations.[81]
While the deduction will still be available to the employer,
they could still be subject to penalties for failing to comply with their
obligations to withhold under section 12-35 of Schedule 1 to the TAA.[82]
Notwithstanding this exception for the incorrect
classification of employees and contractors, Deloitte considers that ‘the
impact of these proposed changes on mainly compliant businesses should not be
underestimated’. In this respect Deloitte notes that businesses may unwittingly
fall foul of the proposed measures where, for example, the business processes
an unusual payment such as a bonus or commission.[83]
Voluntary Notification
Proposed subsection 26-105(1) of the ITAA97
does not apply to deny a taxpayer a deduction if the taxpayer fails to comply
with their withholding or notification requirements but nevertheless discloses the
mistake to the ATO before the taxpayer is informed that their tax
affairs are being examined.[84]
A similar exception is provided for taxpayers who would be denied a deduction
under proposed subsection 26-105(2) of the ITAA97 because of
their failure to comply with section 16‑150 of Schedule 1 to the TAA
but nevertheless voluntarily disclose this.[85]
According to the Explanatory Memorandum the exception ‘encourages taxpayers to
come forward and comply with their withholding obligations’.[86]
Application
The amendments made by Schedule 1 to the Black Economy Bill apply
in relation to a payment made or a non-cash benefit provided on or after 1 July
2019.[87]
Schedule 2—extending third party reporting
As noted in the background above, Schedule 2 to the Treasury Laws
Amendment (Black Economy Taskforce Measures No. 1) Act 2018 extends the
TPRS to businesses with ABNs that provide courier or cleaning services and
engage other entities to perform those services.
The proposed measures in Schedule 2 to the Black
Economy Bill extend the TPRS to entities that have an ABN and supply a ‘road
freight service’, ‘security, investigation or surveillance service’ or an ‘information
technology service’ and engage other entities to perform those services on
their behalf.
Who does it apply to?
Item 1 of Schedule 2 to the Black Economy Bill
repeals item 12 of the table in section 396-55 of Schedule 1 to the TAA,
and inserts proposed table items 12, 13 and 14 into that
table.
Under proposed table items 12, 13 and 14 in
section 396-55 in Schedule 1 of the TAA, an entity that:
- has
an Australian Business Number and
- makes
a supply of a:
- courier
or road freight service
- security,
investigation or surveillance service or
- information
technology (IT) service
must report certain information to the Commissioner where
the entity has provided consideration to another entity
wholly or partly for the supply of those mentioned services. However, the
relevant entity does not need to report this information if:
- the
entities are members of the same consolidated group (consolidation allows
wholly-owned corporate groups to be treated as a single entity for tax
purposes) or Multiple entry consolidated (MEC) group[88]
or
- the
PAYG withholding obligations under Division 12 of Schedule 1 to the TAA
apply, for example, payment to employees for which an amount is already required
to be withheld.[89]
As noted above, item 1 of Schedule 2 to the
Black Economy Bill repeals item 12 of the table in section 396-55 of Schedule 1
to the TAA— item 12 of the table was inserted by the Treasury Laws
Amendment (Black Economy Taskforce Measures No. 1) Act 2018 and it is
the current item imposing reporting obligations on businesses that provide
courier services. This approach appears to have been taken by the Government
because businesses that provide ‘road freight’ services are also likely to
provide ‘courier’ services. This means that an entity that makes either ‘a
supply of a courier service or a road freight service ... are required to report
to the Commissioner’.[90]
The terms ‘road freight’, ‘IT’ and ‘security,
investigation or surveillance service’ are not defined in the Black Economy
Bill or the tax law and according to the Explanatory Memorandum the terms are
intended to take their ordinary meaning.[91]
The Explanatory Memorandum explains the types of activities that are both
likely and unlikely to fall within the ordinary meaning of the terms.[92]
Similarly, the ATO has also issued draft guidance on the terms and provides
relevant examples for consultation.[93]
Exemptions
Under the existing law, the Commissioner may by notice, or
legislative determination, exempt a particular entity or a class of entities
from the reporting requirements imposed under section 396-55 of Schedule 1 to
the TAA.[94]
Such a determination was made under subclauses 3(2) and (3) of Schedule 2 to
the Treasury
Laws Amendment (Black Economy Taskforce Measures No. 1) Act 2018.[95]
That determination exempts an entity from the proposed reporting requirements
where less than 10 per cent of the entity’s GST turnover for the reporting
period relates to a supply of a cleaning or courier service.[96]
Proposed exemption—courier and road
freight services
Subitem 3(1) of Schedule 2 to the Black
Economy Bill revokes the existing exemption in relation to ‘courier services’
and proposes to replace it with a new exemption. The current reporting
exemption applies where the total payments a reporting entity receives for
courier services is less than 10 per cent of the entity’s relevant GST turnover.[97]
The proposed exemption in subitems 3(1) and (2) of Schedule 2 will
take into consideration both the payments a reporting entity receives
for courier services and road freight services.[98]
As stated in the Explanatory Memorandum, this:
... reflects that there is a single reporting obligation for
courier and road freight services, and that supplies of both those services
should be combined to determine whether an entity exceeds the
turnover-threshold test.[99]
The proposed change will apply from the later of 1 July
2019 or the commencement of Schedule 2 to the Black Economy Bill.[100]
As stated in the Explanatory Memorandum, the proposed exemption applies if:
- the
total payments a reporting entity receives for both courier services and road
freight services are less than 10 per cent of the entity’s relevant GST
turnover
- the
reporting entity is not required to report details of the transaction under a
separate reporting obligation in section 396-55 of Schedule 1 to the TAA
and
- the
entity has not voluntarily chosen to give a report.[101]
The justification for the exemptions was briefly provided
in the Revised Explanatory Memorandum to the Treasury
Laws Amendment (Black Economy Taskforce Measures No. 1) Bill 2018 which
stated that the exemption ‘ensures that entities that only make a minimal
number of supplies of cleaning or courier services as a proportion of their
overall GST turnover are not required to prepare and give reports’.[102]
The ASBFEO recommended that the threshold should be 50 per cent and considered
that the threshold of 10 per cent ‘would itself require an additional
compliance burden’.[103]
Both the proposed exemption and the proposed revocation of
the existing exemption will be subject to Parliamentary scrutiny by being
included in the Black Economy Bill. Therefore subitem 3(4) of Schedule
2 to the Black Economy Bill provides that neither the proposed
determination nor the revocation of the existing determination is a legislative
instrument—this means that the exemption on this one occasion is not subject to
the Legislation
Act 2003 which broadly governs the making, regulating and repeal of
legislative instruments.[104]
However, any future determination made by the Commissioner under subsection
396-70(4) of Schedule 1 to the TAA will be a legislative instrument and
subject to the Legislation Act.[105]
Proposed exemption—Security,
investigation or surveillance and IT services
There is no similar exemption contained within the Black Economy
Bill for businesses that provide ‘security, investigation or surveillance’ or ‘IT’
services. However, the ATO has consulted on a proposed determination that it
appears will be issued separately for both proposed table items 13 and 14
in section 396-55 in Schedule 1 of the TAA (‘security, investigation or
surveillance’ and ‘IT’ services). The proposed determination broadly provides
that an entity is not required to report where the total value of the
consideration it receives for providing the relevant services is less than 10%
of its relevant GST turnover.[106]
What is required to be reported?
The relevant entity must provide the ATO with a report
that sets out specified information for the financial year.[107]
Under section 396-60 of Schedule 1 to the TAA, the information must
relate to:
- the
identification, collection, recovery or reduction of a possible tax-related
liability of a party to the transaction and
- may
relate to identifying the parties to the transaction.[108]
Generally the information that will need to be provided by
the entity which makes the supply includes the name, address and ABN of the
other entity and the gross amount paid for the financial year.[109]
Failing to provide the ATO with the relevant information
may result in an administrative penalty for failing to lodge a document on
time.[110]
A penalty could also be imposed for making a false or misleading statement where
the required form is submitted to the ATO but it is misleading, whether because
of information included in it or omitted from it.[111]
Application
Schedule 2 of the Black Economy Bill commences on the
first 1 January, 1 April, 1 July or 1 October to occur after the day of Royal
Assent.[112]
Generally, the proposed amendments apply in relation to transactions that occur
on or after 1 July 2019.[113]
However, as noted above, those entities providing ‘courier’ services will
continue to report transactions occurring on or after 1 July 2018 rather than 1
July 2019.[114]
Schedule 3—imposing excise on
tobacco goods when manufactured
Background and summary
Schedule 3 to the Black Economy Bill amends the Excise
Act and Schedule 1 to the Tobacco Duties Bill amends the Excise
Tariff Act and its Schedule to make excise on domestically manufactured
tobacco due and payable at the time of manufacture rather than being subject to
existing deferral arrangements. As noted in the Assistant Treasurer’s second
reading speech to the Black Economy Bill:
Schedule 3 is part of a suite of measures the government
announced in the 2018-19 budget to combat illicit tobacco. It moves the
taxing point of domestically manufactured tobacco to the point of manufacture
rather than when the tobacco enters home consumption.[115]
(Emphasis added).
The Customs Amendment
(Collecting Tobacco Duties at the Border) Act 2018 (CAA) was
passed by the Parliament in October 2018 and also forms part of the ‘suite of
measures’ announced by the Government in the 2018–19 budget to ‘combat illicit
tobacco’.[116]
The Act requires tobacco importers to pay all duty and tax liabilities upon
importation rather than allowing such liabilities to be deferred until the
imports leave licenced warehouses in Australia.[117]
Additionally, it also requires the duty on any warehoused tobacco to be paid
within 12 months of the commencement of Schedule 2 to the CAA, being 1
July 2019.[118]
Excise is imposed
on domestically produced products and customs duty is imposed on imports—as
stated in the Explanatory Memorandum:
Excise is a tax on certain goods produced in Australia.
Imported goods comparable to those subject to excise, known as excise-equivalent
goods, attract customs duty that includes a component imposed at the same rate
as the excise applied to locally produced goods. This component is commonly
referred to as excise-equivalent customs duty.[119]
Schedule 3 to the
Black Economy Bill and Schedule 1 to the Tobacco Duties Bill implements
comparable excise timing arrangements for the domestic manufacture of tobacco
as implemented for tobacco imports under the CAA.[120]
A licence must be
obtained in order to manufacture tobacco whether for domestic or commercial
sale.[121]
However, as stated in the Explanatory Memorandum ‘no entities in Australia are
licenced to manufacture or produce tobacco’—that is, Australia does not
currently manufacture or produce domestic tobacco but the proposed measures ensure
that the taxing point for any future domestic manufacture of tobacco is
consistent with the treatment of tobacco imports.[122]
Application
Consistent with
the amendments made by the CAA, the amendments made by Schedule 3
to the Black Economy Bill and Schedule 1 to the Tobacco Duties Bill
apply in relation to tobacco goods manufactured on or after 1 July 2019.[123]