Bills Digest no. 19 2015–16
PDF version [641KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Kai Swoboda and Les Nielson
Economics Section
7 September 2015
Contents
Purpose
of the Bill
Committee consideration
Financial implications
Statement of Compatibility with Human Rights
Policy position of non-government parties/independents
Schedule 1—Tax relief for certain mining arrangements
Schedule 2—Increasing the statutory effective life of
in-house software
Schedule 3—Income tax look-through treatment for
instalment warrants and similar arrangements
Schedule 4—Multiple classes of shares
Date introduced: 24
June 2015
House: House of
Representatives
Portfolio: Treasury
Commencement: The formal
provisions of the Bill commence on the day it receives the Royal Assent. Schedules
1 and 3 commence on Royal Assent and Schedule 4 commences the day after Royal
Assent. Schedule 2 commences on 1 July 2015.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
This Bill has four Schedules and the purpose of each
Schedule is briefly described below.
Schedule 1 amends the Income Tax Assessment Act
1997 and the Income Tax (Transitional Provisions) Act 1997 to:
- provide
roll-over relief for two or more taxpayers who enter into arrangements to
realign their individual exploration interests with each other to achieve a
common development strategy
- provide
relief mechanisms for taxpayers entering into arrangements for the exchange of
an interest in a mining, quarrying or prospecting right in return for an
exploration benefit, which usually takes the form of receiving exploration
services or having exploration services funded by another party – these are
generally referred to as farm–in farm–out (FIFO) arrangements and
- address
a technical issue that may have prevented some taxpayers claiming immediate
deductions for expenditure for mining, quarrying or prospecting information.
Schedule 2 amends the Income Tax Assessment Act
1997 extend the statutory effective life of in-house software from four to
five years.
Schedule 3 amends the Income Tax Assessment Act
1997, the Income Tax (Transitional Provisions) Act 1997 and the Taxation
Administration Act 1953 to provide for look-through treatment for
instalment warrants, instalment receipts and similar arrangements. It also
provides for the look-through treatment to apply to limited recourse borrowing
arrangements entered into by regulated superannuation funds.
Schedule 4 amends the Income Tax Assessment Act
1997 and the Income Tax (Transitional Provisions) Act 1997 to effect
changes to the company loss recoupment rules by:
- modifying
the continuity of ownership test for companies whose shares have unequal rights
- clarifying
the operation of the same business test for consolidated groups and
- providing
that, in applying the continuity of ownership test, certain entities such as a
complying superannuation fund, a superannuation fund that is established in a
foreign country, a complying approved deposit fund, a special company and a
managed investment scheme may be treated as if they were a person.
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills made
no comment on the Bill.[1]
The financial implications of the measures proposed in the
Bill are generally small or unquantifiable.[2]
The only exception to this is the measure proposed in Schedule 2 to extend
the statutory effective life of in-house software from four to five years,
which is estimated to increase revenue by $420 million over the period
2014–15 to 2017–18.[3]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), 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 the Bill is compatible.[4]
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[5]
The Australian Labor Party (ALP) supported the measures proposed
by the Bill when it was debated in the House of Representatives on
19 August 2015.[6]
This is not surprising, given that several of the measures were policies either
announced or initiated by the ALP in Government:
- the
legislation that gave rise to the changed tax concession provided to mining
rights and information amended by Schedule 1 was enacted by the Tax and Superannuation
Laws Amendment (2014 Measures No. 3) Act 2014,[7]
a policy announced by the ALP in Government as part of the 2013–14 Budget[8]
- the
changes proposed by Schedule 3 are similar to measures the Rudd
Government announced in the
2010–11 Budget[9]
and
- the
changes proposed by Schedule 4 are similar to proposals made by the Rudd
Government and included in draft legislation in 2009.[10]
Legislation was, however, not introduced into Parliament.
At the time of writing, the views of other non-government
parties and independent Members and Senators on the proposals included in the
Bill have not been publicly expressed.
Background
Policy development
As part of the 2013–14 Budget delivered in May 2013, the Gillard
Government announced that the tax concession of immediate deduction for the
cost of assets first used for exploration would be better targeted by excluding
mining rights and information from this concession.[11]
In November 2013, in a joint media release following the
change of government in September 2013, the Coalition Government announced that
it would proceed with the measure.[12]
In May 2014, as part of the 2014–15 Budget, the Government
announced that it would clarify the treatment of realignments of interests
between joint venture partners in the minerals and petroleum industry. This would
address uncertainty for realignments which were potentially affected by the
decision to limit the immediate deduction for mining rights first used for
exploration.[13]
The legislation to give effect to the 2013–14 Budget
measure, the Tax and
Superannuation Laws Amendment (2014 Measures No. 3) Act 2014 was
introduced into the Parliament in late May 2014 and passed the Parliament in
mid-June 2014.[14]
This legislation did not however incorporate the changes proposed in the
2014–15 Budget announcement, with the Parliamentary Secretary to the Treasurer
noting when he introduced the Bill into the House of Representatives:
The immediate deduction will remain for the cost of rights
acquired from a government issuing authority, the cost of geological,
geophysical or similar information acquired from government authorities and the
cost of data packages acquired from private providers.
An immediate deduction will also be available for farm-out
arrangements, and the treatment of interest realignments in joint venture
common developments will be clarified. These will be covered in a separate Bill
but apply from the same time as the measures in this Bill.[15]
Draft legislation was released by the Treasury for
consultation in January 2015 relating to the interest realignment and farm-in
farm-out arrangements.[16]
At the time of writing, no submissions had been made available by the Treasury.
However, the Australian Petroleum Production and Exploration Association had
separately published its submission.[17]
Key features of the 2014 changes on
joint exploration activities
As noted previously, the Tax and Superannuation
Laws Amendment (2014 Measures No. 3) Act 2014 changed
the tax treatment for mining, quarrying or prospecting rights and information
first used for exploration or prospecting so that it was no longer immediately
deductible unless certain activity tests were satisfied.
For acquisitions, after 14 May 2013, of mining rights and
mining information first used for exploration, an immediate deduction is
limited to three kinds of expenditure:
- the
cost of mining rights and mining information acquired from an Australian
government authority
- the
cost of geological, geophysical or similar information acquired from specified
providers and
- the
cost of newly created mining information.[18]
With the exception of these cases, the cost of acquiring a
mining right and mining information first used for exploration will be
deductible over 15 years or the effective life of the right or information,
whichever is shorter.[19]
A common feature of resource exploration activities is that
they are often pursued by several different parties as a way of sharing risk as
well as providing for a broader financing framework. The various structures
used have tax implications for the parties involved.
An interest realignment arrangement occurs where the parties
to a joint venture exchange interests in mining, quarrying or prospecting
rights to pursue a single development project with a view to aligning the
ownership of individual rights with the ownership of the overall joint venture.[20]
Farm-out arrangements are arrangements entered into for the
purpose of facilitating exploration for the discovery of minerals and petroleum
resources. A typical arrangement provides for the owner of an interest in a
mining tenement (the ‘farmor’) to transfer a percentage of that interest to
another party (the ‘farmee’) if the farmee meets specified exploration
commitments or contributes monetary payments.[21]
Often the commercial driver for such an arrangement from the farmor’s
perspective is funding. That is, the farmor gives up future economic benefits,
in the form of reserves, in exchange for a reduction in future funding
obligations. For the farmee, it provides an opportunity to acquire an interest
in a mining tenement.
The Explanatory Memorandum notes that the 2014 changes may
have had the effect of impeding interest realignment arrangements that
encourage joint development of resource discoveries and that the tax
consequences for farmees could impede genuine exploration activity.[22]
Improvements to mining, quarrying
or prospecting information
The amendments made by the Tax and Superannuation
Laws Amendment (2014 Measures No. 3) Act 2014[23] provide that expenditure incurred in
improving mining, quarrying or prospecting information is only entitled to an
immediate deduction if the original information is acquired from specified
sources. The Explanatory Memorandum notes that a secondary condition to
claiming an immediate deduction for expenditure incurred in improving mining,
quarrying or prospecting information may mean that taxpayers are not entitled
to such a deduction for the expenditure incurred in improving mining
information themselves.[24]
Position of major interest groups
In its submission to Treasury on the draft legislation, the
Australian Petroleum Production and Exploration Association (APPEA) did not
express any view on the provisions overall.[25]
However, APPEA did make some suggested technical amendments to the draft
legislation.
At the time of writing, no other major interest groups had
publicly commented on the proposals included in Schedule 1 of the
Bill.
Key issues and provisions
The reader is referred to pages 14 to 31 (paragraphs 1.29
to 1.99) of the Explanatory Memorandum to the Bill for a detailed explanation
of the provisions, illustrated with examples.
Part 1—Interest realignment
arrangements
Under current arrangements, interest realignment arrangements
would trigger a capital gains tax liability or depreciating asset balancing
adjustment. The changes proposed by Part 1 define the term ‘interest
realignment arrangement’ and outline the relevant tax treatment depending on
the circumstances that apply.
Item 1 of Schedule 1 inserts proposed sections
40–363 and 40–364 into the Income Tax Assessment Act 1997 to provide
roll-over relief for interest realignments.[26]
Item 2 outlines the tax treatment of roll-over relief
in certain instances, including assets that were held prior to the introduction
of the capital gains tax regime (20 September 1985) and the introduction
of the uniform capital allowance (UCA) arrangements from 1 July 2001.
Item 5 provides that amendments made by Part 1 apply
to interest realignment arrangements entered into after 7.30 pm, by legal time
in the Australian Capital Territory, on 14 May 2013.
Part 2—Farm-in farm-out
arrangements
Item 10 amends the Income Tax Assessment Act 1997
to insert proposed Subdivision 40-K, which provides the substantive
arrangements for the tax treatment of parts of interests in mining, quarrying
or prospecting rights that are subject to farm-in farm-out arrangements. This
includes defining the key terms ‘farm-in farm-out arrangement’ and ‘exploration
benefit’.
Item 19 provides that the amendments made by Part 2 apply
in relation to farm-in farm-out arrangements entered into after 7.30 pm, by
legal time in the Australian Capital Territory, on 14 May 2013.
Part 3—Improvements to mining,
quarrying or prospecting information
Item 20 repeals and replaces paragraph 40-80(1AB)(d)
of the Income Tax Assessment Act 1997, to ensure that an immediate
deduction will be available for expenditure incurred by a taxpayer to improve
mining, quarrying or prospecting information.
Item 21 provides that amendments made by Part 3 generally
apply to any mining, quarrying or prospecting information that an entity starts
to hold after 7.30 pm Australian Eastern Standard Time on 14 May 2013.
Background
Existing arrangements
Under the Income Tax Assessment Act 1997, the effective
life over which in-house software can be depreciated is specified to be a
period of four years.[27]
The term ‘in-house software’ is defined in section 995–1 of the Act and covers
computer software, or a right (for example, a licence) to use computer software
that the taxpayer acquires or develops (or has another entity develop) that is
mainly for the taxpayer’s use in performing the functions for which it was
developed, and for which no amount is deductible outside the uniform capital
allowance or the simplified depreciation rules for small business entities.[28]
Policy development
In December 2014, the Government announced the proposal to
extend the statutory effective life of in-house computer software from four
years to five years as part of the 2014–15 Mid-Year Economic and Fiscal
Outlook.[29]
The Government’s policy rationale for this change was summarised by the
Minister introducing the Bill as being related to both the actual effective
life of such assets and the overall budget situation, with the Minister noting
in his second reading speech that:
... the effective life of software for tax purposes better
reflects the typical useful life of software for businesses ... The new treatment
will start for expenditure made on or after 1 July 2015 and will result in a
saving of $420 million over the four years to 2017-18. That is not far from
half a billion dollars—money which can be redirected to fund other priorities.[30]
The proposed increase follows on from a one and a half year
increase (from 2.5 years to four years) to the statutory effective
life that was announced in the 2008–09 Budget and subsequently legislated by
the Tax Laws
Amendment (Budget Measures) Act 2008.[31]
The rationale for the change in the 2008–09 Budget was ‘the Government’s commitment
to responsible economic management’.[32]
The Coalition, then in opposition, was critical of the
measure, noting during parliamentary debate:
This measure contained within the Bill is another tax hit on
business, and small business in particular. Software is bought for operational,
not tax, reasons. That is something that the government just does not seem to
grasp. Software is a pretty fundamental thing that businesses need to conduct
their operations. The measure in this Bill defers deductions. The measure is
estimated to raise about $1.3 billion over the forward estimates.[33]
Position of major interest groups
At the time of writing, no major interest groups had
publicly commented on the proposals included in Schedule 2 of the
Bill.
Key issues and provisions
Item 1 of Schedule 2 replaces the reference to
‘4 years’ for the specified effective life of in-house software in Table item
8 in existing subsection 40–95(7) of the Income Tax Assessment Act 1997 with
‘5 years’.
Item 2 replaces the existing table in section 40–455
which provides for a specific percentage depreciation over a four year period
for capital expenditure allocated to a software development pool (nil in year
1, 40 per cent in year 2, 40 per cent in year 3 and 20 per cent
in year 4), with an alternative table that provides for deductions over a
five-year period (nil in year 1, 30 per cent in year 2, 30 per cent
in year 3, 30 per cent in year 4 and 10 per cent in year 5).
Item 3 provides that the amendments made by item 1
apply to in-house software if its start time occurs on or after 1 July
2015 and those made by item 2 apply to expenditure incurred in an income
year starting on or after 1 July 2015.
Background
What is an instalment warrant?
A 2010 government discussion paper on the tax treatment of
instalment warrants defined the product in the following way:
Instalment warrants are a form of derivative or financial product
that entails borrowing to invest in an asset, such as a share or real property
(the underlying asset). In its simplest form, the investor makes an upfront
payment, which typically includes prepaid interest and borrowing fees. The
underlying asset is held on trust during the life of the loan to provide
limited security for the lender. The investor is required to pay one or more
future instalments.
If the investor pays all the future instalments, the trustee
transfers the underlying asset to the investor. Alternatively, the investor may
direct the trustee to sell the underlying asset and transfer the proceeds to
the investor (less any fees).
If the investor defaults on the outstanding instalments, the
trustee sells the underlying asset to fund the outstanding instalments and any
other costs.[34]
A similar arrangement is named an ‘instalment receipt’.
The Explanatory Memorandum notes that the key difference between this
arrangement and a warrant is that no borrowing is involved, rather there is the
provision of credit to acquire an asset that is held on trust until the
purchase price of that asset is fully paid by the investor.[35]
Other secured financing arrangements can be structured to operate in the same
way as instalment warrants and receipts.[36]
The Bill uses the term ‘instalment trust’. Briefly, this
term refers to the trust established by the instalment warrant or receipt or
similar arrangement which holds the assets in question. Item 5 of Schedule
3 further defines this term (see further comment below).
Who uses such arrangements?
While any investor may make use of instalment warrants and
similar arrangements, Self-Managed Superannuation Funds (SMSFs) have been
conspicuous in their use of these products. Generally, superannuation funds may
not borrow to purchase investments.[37]
However, SMSFs are allowed to do so where they employ Limited Recourse
Borrowing Arrangements (LRBA).[38]
Such arrangements limit the lender’s rights to recover any debt to the specific
assets purchased under that arrangement. Consequently, only the specific asset
purchased using this arrangement may be recovered in the event of a default,
and not the entire assets of the SMSF engaging in the arrangement.
The number of SMSFs has continued to increase. In the June
2010 quarter there were 787,510 SMSFs. This figure had increased to 999,927 by
March 2015.[39]
Between June 2013 and March 2015 the percentage of total SMSF assets made up of
LRBA arrangements has fallen from 1.8 to 1.6 per cent. However the dollar value
has increased from $8.8 to $9.5 billion.[40]
What is a look-through treatment?
As noted above, the assets purchased via an instalment
warrant, or similar arrangements, are held in trust. The trust should gain the
benefits of holding that asset. However, long standing tax practice has been to
assess the investor purchasing the asset as receiving the benefits and
incurring the losses from holding that asset.[41]
The trust is ignored for tax purposes. Thus the trust is ‘looked through’ when
an investor’s tax affairs are assessed.
What problem is being dealt with by
the proposed amendments?
The ATO has advised that existing tax law does not support
the ‘look through’ treatment of an investor purchasing an asset via an
instalment warrant or similar arrangement.[42]
The proposed amendments alter taxation law so that the look through treatment
of instalment warrants is grounded in that law.
Position of major interest groups
Generally the proposed changes have received support from
the tax and investment community, but some concerns were expressed in
submissions on the exposure draft of the proposed changes. The Tax Institute
supported the proposed changes but sought to broaden its scope.[43]
There has been limited comment on the proposed changes.
One legal group, commenting on the exposure draft of this legislation, noted
that:
The proposed legislation is a step forward; however it fails
to deal with the treatment for GST purposes, which is a major area of concern
in a number of limited recourse borrowing arrangement (LRBA) transactions.
Unless this is appropriately dealt with in the final legislation, extreme care
must be taken to ensure that GST is dealt with properly in an LRBA. In
particular, our concern is that [ATO ruling] GSTR 2008/3[44]
is not wide enough to apply to all LRBAs.[45]
Another legal group supports the proposed changes but also
suggests additional changes to the draft legislation.[46]
Industry reaction appears to strongly support the proposed amendments.[47]
Key issues and provisions
Item 1 of Schedule 3 inserts proposed Division
235 into the Income Tax Assessment Act 1997 to provide a legislative
basis for ‘look through’ treatment of instalment warrants and similar arrangements.
The main provisions are in proposed Subdivision 235-I. They are:
- proposed
section 235-815 applies this proposed subdivision to entities that have
beneficial interests in an instalment trust (see below) as well as the trustee
of that instalment trust
- proposed
section 235-820 establishes the look through treatments of instalment
trusts
- the
concerns noted above about clarifying the treatment of instalment warrant and
similar arrangements for Goods and Services Tax (GST) purposes appears to be
covered by proposed subsection 235-820(5) of the Income Tax
Assessment Act 1997 (see item 1 of Schedule 3), which
clarifies that any GST consequences arising from such transactions apply to the
investor, not the interposed trust
- proposed
section 235-825 defines the term ‘instalment trust’, amongst other
definitions, for the purposes of this proposed subdivision (see below) and
- proposed
sections 235-830, 235-835 and 235-840 further define which trusts
are instalment trusts for the purposes of this proposed subdivision (see
below).
Item 5 inserts three proposed definitions into
existing subsection 995-1 of the Income Tax Assessment Act 1997. These
new definitions are:
- ‘instalment
trust’ – which has the meaning given by proposed section 235-825
- ‘instalment
trust asset’ – has the meaning given by proposed section 235-825 and
- ‘regulated
superannuation fund’ – which is proposed to have the same meaning as in the Superannuation
Industry (Supervision) Act 1993 (SIS Act).
- Section
19 of the SIS Act defines a regulated superannuation fund. Briefly, such
a fund must have a trustee. The trustee must be a constitutional corporation, except
if the fund is a pension fund. The trustee must also have given the Australian
Prudential Regulation Authority a notice stating that the SIS Act
applies to the trust in question.[48]
The main definition is that of an ‘instalment trust’. Proposed
section 235-825 specifies that a trust is an instalment trust if:
- it
is covered by proposed section 235-830 and satisfies the requirements in
proposed section 235-835 or
- the
trust is covered by proposed section 235-840.
Proposed section 235-830 provides that an
arrangement is an instalment trust where:
- the
security for the borrowing/credit is provided by the assets acquired by the
trust
- the
investor has a beneficial interest in the underling investment as the sole
beneficiary of the trust
- the
credit was provided to acquire the asset or assets held by the instalment trust
- the
investor is entitled to the benefit of all income from the underlying
investments and
- the
investor is entitled to acquire legal ownership of the underlying investment
once the borrowing/credit arrangements have been discharged.
However, proposed section 235-830 does not apply to
situations where the investor is a regulated superannuation fund that has
entered into an arrangement that includes a borrowing (proposed
subsection 235‑830(2).
Proposed section 235-835 requires that the
underlying investment of an instalment trust be:
- a
share, a unit in a unit trust or a stapled security or a direct or indirect
interest in an entity that holds an interest in a share, a unit in a unit trust
or a stapled security and
- such
shares, units or stapled securities are listed on an approved stock exchange
and meet specified requirements for being ‘widely held’.
Under section 67 of the Superannuation Industry
(Supervision) Act 1993 regulated superannuation funds are not allowed to
borrow to purchase investment assets, and may only borrow to meet specified
short term needs. This explains the exclusion of regulated superannuation funds
from the proposed section 235-830.
An exception to the prohibition on borrowing in certain
situations is provided in subsection 67A(1) of the Superannuation Industry
(Supervision) Act 1993, amongst which is where a borrowing in undertaken to
acquire a single asset, and the borrowing liability is limited to that asset,
and not all the assets of that superannuation fund. Proposed section 235-840
defines an arrangement to be an instalment trust where the trustee of a
regulated superannuation fund undertakes a borrowing that is covered by either
subsection 67A(1) or former subsection 67(4A), of that Act.[49]
Item 6 of Schedule 3 inserts proposed
subsection 235-810 into the Income Tax (Transitional Provisions) Act
1997, which applies the provisions of proposed Subdivision 235-I of
the Income Tax Assessment Act 1997 to assets acquired from the 2007–08
income year or later years.[50]
Concluding comments
The proposed amendments make long awaited changes to the Income
Tax Assessment Act 1997. They are uncontroversial and effectively provide a
legal basis for long standing Tax Office practice when assessing these
transactions.
Background
The proposed amendments in Schedule 4 mainly concern
the ‘Continuity of Ownership’ test (COT). The purpose of this test is determine
whether a company may claim prior year losses as a deduction against income for
tax purposes in circumstances where there have been changes in that company’s shareholdings
due to mergers, acquisitions, divestments or other corporate restructuring
events.
The continuity of ownership test
To utilise prior years’ losses, under the COT (Divisions 165
and 166 of the Income Tax Assessment Act 1997), a company’s shares
carrying more than fifty per cent of all dividend, voting and capital rights
must essentially be beneficially owned by the same persons at all times during
the ownership test period. The ownership test period broadly starts at the
beginning of the loss year and ends at the end of the year of recoupment.
Furthermore, the majority underlying ownership test must be satisfied in
relation to the same shares. Certain concessional COT tests are available to
widely held and/or listed companies.[51]
Rationale for the COT
The COT has existed in legislation since the Second World
War, as the following quote notes:
In 1944, the continuity of ownership test (COT) was
established for private companies to address ‘loss trafficking’, that is,
purchasing companies in order to gain a tax advantage from the carry forward
losses. Loss trafficking was described by the Treasurer at the time as the
practice ‘of buying up shares in practically defunct companies and then
operating those companies for purposes other than those for which they were
originally registered’.[52]
In April 2012 the Business Tax Working Group issued a Final
Report on Tax Losses. That report noted:
There is no single, coherent policy that governs the tax
treatment of carry forward losses. Our current system attempts to negotiate
various competing policy considerations, not least of which is the impact the
treatment of losses has on government revenues.
A key justification for loss integrity rules is that they
remove incentives for 'tax driven' activities involving entities with losses.
The challenge is how to frame these rules to discourage tax driven practices
without impacting adversely on legitimate commercial activities.[53]
For example, the report noted that the COT (along with
other rules) was implemented to:
... target specific behaviour
that could lead to loss duplication, whereby multiple [tax] losses stem from
one economic loss.[54]
The problems that the COT (and its companion Same Business
Test) is meant to address are illustrated by the following example:
Anne injects equity of $100 in Company A (assume she is the
only shareholder). During income year 1, the company makes a (revenue) loss of
$100. Assume the company has poor prospects of earning future revenue against
which it might use its loss. However, the loss potentially has a theoretical
tax value of $30 to someone who could immediately use the loss against other
income.
At the start of income year 2, Boris purchases Anne's
shareholding for $20. Boris is willing to pay $20 for the shares because he is
confident he can use the tax loss against other income in year 2. Anne will
have made a capital loss on her shares of $80. Assuming she has other capital
gains for the year, Anne will have realised some of the tax value of the
revenue loss incurred by the company plus the value of the capital loss on her
equity in Company A. Boris shields $100 of income from his other business in
year 2 by using the carried-forward loss and terminates the business activities
of company A.[55]
Are there difficulties in the COT’s
operation?
In 2012 a senior tax practitioner noted difficulties in
applying the COT in practice, in particular with regard to tracing the
ownership of shares in certain situations:
...the COT can often be problematic to apply due to the
requirement to trace through ownership, particularly in cases where ownership
is held indirectly through a number of entities (including fixed and non-fixed
trusts and partnerships).
For example, for the purposes of applying the COT, if
interests in the loss company are held by non-fixed trusts (such as
discretionary trusts), it can be difficult to trace through to the ultimate
beneficial owner. Or, in the case where a company has a small number of
shareholders, any slight changes to shareholdings may result in a failure of the
COT. Further, companies often face difficulties when applying the same
shares/same owners test over a prolonged period of time.
Other difficulties which company’s [sic] may face include
scenarios whereby the company has multiple classes of shares on issue or
special distribution arrangements regarding its dividends, or where company
shares do not all carry the same voting rights... .
In addition, for the purposes of applying the COT, it may, in
practice, be time-consuming, costly and difficult to trace beneficial ownership
to individual shareholders and to monitor this tracing on an ongoing basis.[56]
The proposed amendments seek to address these problems.
The Same Business Test
If a company does not pass the COT in order to utilise prior
years’ losses, it may apply the ‘Same Business Test’ (SBT) to achieve the same
end. Briefly:
A company satisfies the SBT if it carries on the same
business in the claim year as it carried on immediately before it failed the
COT. The SBT is intended to ensure continuity of the whole of the business
activities carried on by the taxpayer just before it failed the COT and the
whole of the business activities carried on by the taxpayer during the period
of recoupment.[57]
The proposed amendments contain changes in the application
of the SBT in relation to consolidated groups or multiple entry consolidated
groups (MEC).
Position of major interest groups
One accounting group has noted:
As a result of the changes proposed in the Bill, companies
with unequal share structures may now be able to claim they satisfy the COT
test with a little more confidence.[58]
Key issues and provisions
Item 1 of Schedule 4 inserts proposed
Division 167 into the Income Tax Assessment Act 1997. This new
division contains the bulk of the modifications to the COT. Briefly, if an
entity cannot work out whether it satisfies the COT for the purposes of
claiming a prior year’s losses for tax purposes, in circumstances of unequal
capital structure (that is, where the company’s shares have unequal rights to
dividends, capital distributions or voting power) it can:
- disregard
any debt interests in its capital structure (proposed section 167-15);
if the situation is not resolved it can then
- disregard
secondary share classes (as well as the debt interests) (proposed section
167-20); if the situation is still not resolved it can then
- treat
the remaining shares as having fixed rights to dividends and capital
distributions (proposed section 167‑25), while also
disregarding any debt interests and secondary share classes in the company’s
capital structure.
While these proposed changes will greatly ease the
administrative task of determining whether a company can utilise the prior
year’s losses it may also lead to some losses being used that are not within
the policy’s intent. Unfortunately, there is no way of determining whether this
will occur in advance.
Item 53 of Schedule 4 inserts proposed
section 167-1 into the Income Tax (Transitional Provision) Act 1997.
The effect of this new section is to apply the provisions of proposed
Division 167 of the Income Tax Assessment Act 1997 to any relevant
act which occurred from 1 July 2002.
The Explanatory Memorandum notes that normally, under
section 170 of the Income Tax Assessment Act 1936, a company’s income
tax assessment can only be amended within four years of the date of assessment.[59]
The Memorandum also states that the operation of section 170 of the Income
Tax Assessment Act 1936 will be altered to give effect to this decision.
This is achieved by clause 4 of the Bill, which will allow amendment of
past assessments provided that the amendment occurs within four years of the
commencement of Schedule 4 to the Bill.
Even by the standards of tax legislation, where retrospective
application of provisions is not unusual, this degree of retrospectivity is
unusual to say the least. The Explanatory Memorandum is less clear on why this
particular date was chosen.[60]
This early application date opens up the possibility of a large number of tax
losses that were previously un-utilised, being claimed, and possibly leading to
significant revenue impacts.
Item 54 in Part 2 of Schedule 4 repeals
existing section 165-212E of the Income Tax Assessment Act 1997 and
substitutes proposed section 165-212E. The revised section states that
‘the entry history rule’ in section 701-5 of the Income Tax Assessment Act
1997 does not operate for the purposes of the SBT in section 165-210. The
existing text appears to cover much the same ground where it states:
For the purposes of the same business test, if an entity (the
joining entity) becomes a subsidiary member of a consolidated group or a MEC
group, section 701-5 (the entry history rule) does not operate to take the
business of the head company of the group to include the business of the
joining entity before it became a member of the group.[61]
What appears to be new is that the proposed text is to
apply from 1 July 2002, according to item 55 of Schedule 4.
Existing section 165-212E of the Income Tax Assessment Act 1997 applied
from 14 December 2005.[62]
The Explanatory Memorandum notes that this item is beneficial to taxpayers. No
doubt it will make achieving compliance with the SBT easier for consolidated
groups, but it may also result in additional deductions from previous years’
company taxable income to arise. While the retrospective application of the
proposed new section is not as startling at that of items 1 and 53 above,
it may still lead to some additional revenue leakage.
Concluding comments
The application of some of the changes in Schedule 4
from 1 July 2002 may give rise to additional workloads for the Australian Tax
Office in revising company income tax assessments. Additional administrative
resources may be required to meet this possible increased workload.
[1]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 7, 2015, 12 August 2015, p. 41, accessed 13 August 2015.
[2]. Explanatory
Memorandum, Tax and Superannuation Laws Amendment (2015 Measures No. 2)
Bill 2015, pp. 3–6, accessed 12 August 2015.
[3]. Ibid.,
p. 4.
[4]. The
Statements of Compatibility with Human Rights for each Schedule of the Bill can
be found at pages 32–33, 39, 61 and 104 of the Explanatory Memorandum to the
Bill.
[5]. Parliamentary
Joint Committee on Human Rights, Twenty-fifth
report of the 44th Parliament, 11 August 2015, p. 1, accessed
12 August 2015.
[6]. A
Leigh, ‘Second
reading speech: Tax and Superannuation Laws Amendment (2015 Measures No. 2)
Bill 2015’, House of Representatives, Debates (proof), 19 August
2015, p. 26, accessed 4 September 2015.
[7]. Tax and Superannuation
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2015.
[8]. A
Leigh, ‘Second
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[9]. Australian
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[10]. N
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2009; Treasury, Tax Laws Amendment (2009 Measures No. 6) Bill 2009: Company
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Draft, 4 September 2009.
[11]. Australian
Government, Budget
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[12]. J
Hockey (Treasurer) and A Sinodinos (Assistant Treasurer) Restoring
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the corporate tax base from erosion and loopholes — targeting the deduction for
exploration to genuine exploration activity, joint media release, 6
November 2013, accessed 23 July 2015.
[13]. Australian
Government, Budget
measures: budget paper no. 2: 2014–15, p. 13, accessed
12 August 2015.
[14]. Tax and Superannuation
Laws Amendment (2014 Measures No. 3) Act 2014, Schedule 1, accessed
12 August 2015; Parliament of Australia, ‘Tax
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Australian Parliament website, accessed 12 August 2015.
[15]. S
Ciobo (Parliamentary Secretary to the Treasurer), ‘Second
reading speech: Tax and Superannuation Laws Amendment (2014 Measures No. 3)
Bill 2014’, House of Representatives , Debates,
29 May 2014, p. 4788, accessed 12 August 2015.
[16]. Treasury,
‘Resource project realignment and farm-out legislation: 9 January 2015—Exposure
Draft, Treasury website, accessed 19 August 2015.
[17]. Australian
Petroleum Production and Exploration Association, Submission
to Treasury, Resource project realignment and farm-out legislation,
6 February 2015, accessed 19 August 2015.
[18]. Australian
Taxation Office (ATO), ‘Limiting
deductibility for exploration expenditure’, ATO website, accessed
19 August 2015.
[19]. Ibid.
[20]. Explanatory
Memorandum, op. cit., p. 9.
[21]. ATO,
Miscellaneous
taxes: application of the income tax and GST laws to immediate transfer
farm-out arrangements, Miscellaneous Taxation Ruling MT 2012/1,
accessed 19 August 2015.
[22]. Explanatory
Memorandum, op. cit., pp. 9 and 11.
[23]. Tax and Superannuation
Laws Amendment (2014 Measures No.3) Act 2014 (Cth), accessed 4
September 2015.
[24]. Explanatory
memorandum, ibid., p. 11.
[25]. Australian
Petroleum Production and Exploration Association, Submission
to Treasury, op. cit.
[26]. Income Tax Assessment
Act 1997, accessed 4 September 2015.
[27]. Income Tax Assessment
Act 1997, subsection 40–95(7), accessed 12 August 2015.
[28]. ATO,
‘Individual
tax return instructions 2015: In-house software’, ATO website, accessed
14 August 2015.
[29]. Australian
Government, Mid-year
economic and fiscal outlook 2014–15, p. 111, accessed
12 August 2015.
[30]. J
Frydenberg (Assistant Treasurer), ‘Second
reading speech: Tax and Superannuation Laws Amendment (2015 Measures No. 2)
Bill 2015’, Debates, House of Representatives, 24 June 2015,
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[31]. Australian
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measures: budget paper no. 2: 2008–09, p. 20, accessed
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[32]. Tax Laws Amendment
(Budget Measures) Act 2008, Schedule 2, accessed 12 August 2015.
[33]. M
Keenan, ‘Second
reading speech: Tax Laws Amendment (Budget Measures) Bill 2008’, House of
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[34]. Australian
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[35]. Explanatory
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[36]. Ibid.,
p. 45.
[37]. Superannuation Industry
(Supervision) Act 1993, section 67, accessed 14 August 2015.
[38]. Superannuation
Industry (Supervision) Act 1993, subsections 67A(1)..
[39]. ATO,
‘Self-managed
super fund statistical report – March 2015’, ATO website, accessed 5 August
2015.
[40]. Parliamentary
Library estimates, derived from Australian Taxation Office (ATO), ‘Self-managed
super fund statistical report – March 2015’, op. cit.
[41]. Australian
Government, Income Tax Treatment of Instalment Warrants, op. cit., p. 7.
[42]. Ibid.
[43]. The
Tax Institute, Submission
to Treasury, Look-through treatment for instalment warrants and instalment
receipts—Exposure draft, 16 February 2015, accessed 4 September
2015.
[44]. This
ruling deals with the GST treatment of real property transactions by ‘bare’
trusts: Australian Taxation Office (ATO), Goods and Services Tax Ruling, GST2008/3,
Goods and services tax: dealings in real
property by bare trusts, ATO website, accessed 4 September 2015.
[45]. Cooper
Grace Ward, ‘SMSF
borrowing – Government releases draft legislation to clarify ‘look through’ tax
treatment’, Cooper Grace Ward website, accessed 4 August 2015. Another
legal group has expressed similar concerns: see Sladen Legal, ‘Sladen
Snippet – “Look through” Bill released for limited recourse borrowing
arrangements’, Sladen Legal website, 25 June 2015, accessed 3 August 2015.
[46]. L
To, ‘Looking
through the SMSF LRBA draft legislation’, Bartier Perry website, February
2015, accessed 4 August 2015.
[47]. K
Taurian, ‘Proposed
Legislation a win for SMSFs’, SMSFAdvisor website, 2 July 2015, accessed 4
August 2015.
[48]. Superannuation Industry
(Supervision) Act 1993, ss. 10, 19, accessed 4 September 2015.
[49]. Subsection
67(4A) of the Superannuation
Industry (Supervision) Act 1993 (version as at 1 July 2010) was
removed by item 7 of Schedule 1 of the Superannuation Industry
(Supervision) Amendment Act 2010 (No. 100 of 2010), both accessed 4
September 2015. The provisions of the repealed subsection are similar to the
current provisions of existing subsection 67A(1) of the Superannuation
Industry (Supervision) Act 1993.
[50]. Income Tax (Transitional
Provisions) Act 1997, accessed 4 September 2015.
[51]. Explanatory
Memorandum, op. cit., p. 64.
[52]. K
Asprey, Taxation Review Committee: Full report, Australian Government
Publishing Service, Canberra, 1975, pp. 249–250, in Australian Government,
Business Tax Working Group, Final
report on the tax treatment of losses, 12 April 2012, p. 37.
[53]. Ibid.,
p. 36.
[54]. Ibid.,
p. 37.
[55]. Ibid.,
p. 38.
[56]. M
Huynh (then Senior Tax Consultant HLB Mann Judd Melbourne), ‘Company loss
recoupment rules: Proposed outlook for 2012’, Taxation in Australia, 46(8),
March 2012, p. 338.
[57]. Business
Tax Working Group, op. cit., p. 38, accessed 6 September 2015.
[58]. N
McBride et al., ‘Amendments
to the company loss rules’, Greenwoods
& Herbert Smith Freehills website, 16 July 2015, accessed
4 September 2015.
[59]. Explanatory
Memorandum, op. cit., p. 103.
[60]. Ibid.,
pp. 101–102.
[61]. Income Tax Assessment
Act 1997, section 165–212E.
[62]. Section
165-212E of the Income Tax Assessment Act 1997 was inserted by item 76
of Schedule 1 to the Tax
Laws Amendment (Loss Recoupment Rules and Other Measures) Act 2005.
This item applied from the date of Royal Assent, which was 14 December 2005.
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