Chapter 1

Chapter 1

Introduction

1.1        On 9 May 2018, the Senate agreed that all bills introduced into the House of Representatives after 10 May 2018 and up to and including 31 May 2018 that contain substantive provisions commencing on or before 1 July 2018 be referred to committees for inquiry and report by 18 June 2018.[1]

1.2        On 24 May 2018, the Senate referred the provisions of the Treasury Laws Amendment (Tax Integrity and Other Measures No. 2) Bill 2018 (the bill) to the Economics Legislation Committee for inquiry and report by 18 June 2018.

1.3        As outlined by the Hon Michael Sukkar MP, Assistant Minister to the Treasurer, in his second reading speech, the bill seeks to implement a range of measures including:

...the OECD hybrid mismatch rules, which are designed to strengthen the integrity of the tax system, continuing the Turnbull government's work on combating multinational tax avoidance. It also includes an amendment to strengthen the Producer Offset and encourage filmmakers to employ Australian cast and crew, as well as measures to provide tax exemptions to support the International Cricket Council to hold the World Twenty20 in Australia and an update to the registered list of Deductible Gift Recipients.[2]

1.4        The bill contains 5 schedules:

Conduct of the inquiry

1.5        The committee advertised the inquiry on its website. It also wrote to relevant stakeholders and interested parties inviting written submissions by 8 June 2018. The committee received five submissions, which are listed at Appendix 1.

1.6        The committee would like to thank all the individuals and organisations that participated in the inquiry.

Overview of the bill

Schedule 1: OECD Hybrid Mismatch Rules

1.7        Schedule 1 of the bill contains two parts:

Hybrid mismatch arrangements

1.8        The explanatory memorandum explains the circumstances in which hybrid mismatch arrangements arise:

In broad terms, hybrid mismatch arrangements arise where entities exploit differences in the taxation treatment of an entity or instrument under the laws of at least two tax jurisdictions to defer or reduce income tax. This can result in double non-taxation, including long term tax deferral.[9]

1.9        There are two types of hybrid mismatch arrangements; deduction/deduction mismatch arrangements and deduction/non-inclusion mismatch arrangements:

1.10      Hybrid mismatches pose a significant problem for the tax system when an arrangement involves related parties or is deliberately structured to result in a mismatch because it provides an opportunity to eliminate taxes that would otherwise be payable on business income unrelated to the arrangement. Hybrid mismatch arrangements can reduce the collective tax base of countries around the world.[11]

1.11      Hybrid mismatch rules aim to neutralise the effects of hybrid mismatches so that unfair tax advantages do not accrue for multinational groups as compared with domestic groups.[12]

Background

1.12      In 2015, as part of the OECD/G20 Base Erosion and Profit Shifting Project, the OECD released the report, Neutralising the Effects of Hybrid Mismatch Arrangements (OECD Action 2 Report), which made recommendations to neutralise the effects of hybrid mismatch arrangements.[13]

1.13      In the 2015–16 Budget, the government asked the Board of Taxation to consult on the implementation of the OECD hybrid mismatch rules. The Board of Taxation completed its Report to the Treasurer—Implementation of the OECD Hybrid Mismatch Rules—in March 2015.

1.14      The hybrid mismatch rules inserted into the ITAA 1997 by Part 1 of
Schedule 1 to the bill implement the recommendations made in the OECD Action 2 Report, taking into account the recommendations made by the Board of Taxation. These measures were announced in the 2016–17 Budget.[14]

1.15      In 2017, the OECD released the report, Neutralising the Effects of Hybrid Mismatch Arrangements (OECD Branch Mismatch Arrangements Report), which made recommendations to neutralise the effects of branch mismatch arrangements.[15]

1.16      In the 2017–18 MYEFO, the government announced an extension of the OECD extension of the OECD hybrid mismatch rules to implement the recommendations in the OECD Branch Mismatch Arrangements Report. Part 2 of Schedule 1 to the bill implements Recommendations 1 and 3 of that report.[16]

1.17      The OECD hybrid mismatch rules will apply to income years starting on or after 1 January 2019.[17]

Schedule 2: OECD Hybrid Mismatch Rules—Branch mismatch arrangements

1.18      As previously noted, in the 2016–17 Budget, the government announced that it would implement the recommendations made in the OECD Action 2 Report, taking into account the recommendations made by the Board of Taxation.

1.19      Consistent with Recommendation 2 of the OECD Action 2 Report, Schedule 2 of the bill seeks to implement part of the OECD hybrid mismatch rules by modifying domestic income tax law to:

1.20      In the 2017–18 Budget, the government further announced that it would eliminate hybrid tax mismatches that occur in cross border transactions relating to Additional Tier 1 regulatory capital. Transitional rules for Additional Tier 1 capital instruments issued before 9 May 2017 were also announced.[19]

1.21      The Explanatory Memorandum outlines the application of these transitional rules:

Transitional rules apply to Additional Tier 1 capital instruments issued by ADIs [authorised deposit-taking institutions], general insurance companies and life insurance companies before 9 May 2017. Under these transitional rules, the amendments to deny imputation benefits do not apply in relation to distributions on the instrument that are made before the first available call date of the instrument that occurs on or after 9 May 2017.[20]

1.22      Subject to the transitional rules detailed above, the amendments to deny imputation benefits and to make foreign equity distributions assessable apply in relation to distributions made on or after 1 January 2019.[21]

Schedule 3: Strengthening the integrity of the film producer offset

1.23      Schedule 3 of the bill seeks to amend the ITAA 1997 to limit what is qualifying Australian production expenditure (QAPE) under the producer offset. The principal objective of the proposed amendment is to ensure that the producer offset is better targeted at supporting the Australian film industry when an offshore location is used for principal photography.[22]

1.24      Currently under the ITAA 1997, companies are entitled to a producer offset for QAPE incurred for a film with significant Australian content. Where the subject matter of a film reasonably requires principal photography in a location outside Australia, a company may claim towards the producer offset expenditure incurred for the purchase of services performed in that location from a company or permanent establishment that has an Australian Business Number (ABN).[23] This provision in the ITAA 1997 is often referred to by the industry as the 'Gallipoli Clause'.

1.25      The amendment to the producer offset proposed in the bill imposes an additional Australian residency requirement on individuals that perform services outside Australia through a company or permanent establishment if a film reasonably requires a foreign location to be used for principal photography.[24]

1.26      The amendment applies to expenditure incurred in relation to films that commenced principal photography on or after 1 July 2017. The explanatory memorandum explains that retrospective application 'is necessary as the amendment is an integrity measure designed to ensure that the scope of the producer offset is appropriate and targeted to supporting the Australian screen industry'.[25]

Schedule 4: Income tax and withholding exemptions for the ICC World Twenty20

1.27      Schedule 4 to the bill seeks to amend the ITAA 1997 and the ITAA 1936 to provide an income tax exemption for the IBC, and also an exemption from interest, dividend and royalty withholding tax liability for amounts paid to the IBC.[26]

1.28      The income tax law exempts the ordinary and statutory income of a number of categories of organisations from income tax liability. Payments of interest, dividends and royalties made to non-residents by residents are not subject to withholding tax in some circumstances if the non-resident is exempt from income tax.[27]

1.29      The objective of these amendments is to provide support to the International Cricket Council in staging the ICC World Twenty20 in Australia in 2020.[28]

1.30      The amendments apply on and from 1 July 2018 to 30 June 2023 inclusive to income derived by the IBC and interest, dividend and royalty withholding tax obligations for payments to the IBC.[29]

Schedule 5: Deductible Gift Recipients

1.31      Schedule 5 to the bill seeks to amend the ITAA 1997 to list Melbourne Korean War Memorial Committee Incorporated as a DGR.[30]

1.32      The income tax law allows income tax deductions for taxpayers who make gifts of $2 or more to a DGR. DGRs are entities which fall within one of the general categories set out in Division 30 of the ITAA 1997 or are specifically listed by name in that Division.[31]

1.33      The proposed amendment ensures that Melbourne Korean War Memorial Committee Incorporated receives appropriate support through the Commonwealth tax system for building a memorial in Melbourne honouring Australians who served in the Korean War.[32]

1.34      The amendment applies to gifts made to Melbourne Korean War Memorial Committee Incorporated between 1 January 2018 and 31 December 2019 inclusive.[33]

Financial impact

1.35      The package of OECD hybrid mismatch reforms, contained in Schedules 1 and 2 of the bill, is expected to have an unquantifiable gain to revenue over the forward estimates.[34]

1.36      The estimated financial impact of the producer offset amendments set out in Schedule 3 is a reduction in expenditure of $6 million over the forward estimates as follows:

Table 1: Financial impact—Strengthening the integrity of the film producer offset[35]

2017–18

2018–19

2019–20

2020–21

-

-$2m

-$2m

-$2m

-  Nil

1.37      The income tax and withholding exemptions measure in Schedule 4 is estimated to have an unquantifiable impact on revenue over the forward estimates.[36]

1.38      The cost to revenue of the deductible gift recipient measure in Schedule 5 was estimated in the 2017–18 MYEFO to be $1.1 million over the forward estimates as follows:

Table 2: Financial impact—Deductible Gift Recipients[37]

2016–17

2017–18

2018–19

2019–20

2020–21

-

-

-$0.4m

-$0.5m

-$0.2m

-  Nil

Compatibility with Human Rights

1.39      As required under the Human Rights (Parliamentary Scrutiny) Act 2011, the government has assessed the bill's 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 all schedules in the bill are compatible.[38]

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