tax corrs Editors: september 2012

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1 corrs tax Editors: Welcome to the September 2012 edition of the Corrs Tax newsletter. We bring you brief summaries of topical taxation issues, as well as their implications for your business. In this issue: Government s proposed changes to the tax treatment of related party bad debts We consider the government s proposed reforms to the treatment of related party bad debt deductions as outlined in its recent discussion paper. The Director Penalty Regime: increasing director obligations We examine amendments to the directors penalty regime imposed for nonpayment of tax liabilities and super guarantee charge that commenced on 29 July Australian Taxation Office Compliance Program We outline the key areas of focus for the ATO s compliance program, including the number of proposed audits and reviews for each key focus area. Jonathon Leek Partner, Perth Tel jonathon.leek@corrs.com.au Simon Mifsud Senior Associate, Sydney Tel simon.mifsud@corrs.com.au Kathryn Bertram Senior Associate, Melbourne Tel kathryn.bertram@corrs.com.au jonathon leek simon mifsud How can we improve? We are always striving to improve our newsletters to make them more relevant. We welcome your feedback on suggested themes/topics and any questions or general comments. Every person whose suggestion is implemented will receive a small gift from us. Contact the editors for feedback. kathryn bertram

2 Government s proposed changes to the tax treatment of related party bad debts By Stewart Grieve and Kathryn Bertram In the Federal Budget, the Government announced it would amend the Income Tax Assessment Act 1997 (ITAA97) to deny a tax deduction for a bad debt written off in circumstances where the debtor and creditor are related parties not within the same tax consolidated group. The announcement was prompted by the Commissioner of Taxation losing cases such as Commissioner of Taxation v BHP Billiton Ltd [2010] FCAFC 25 and Commissioner of Taxation v Ashwick (Qld) No 127 Pty Ltd [2011] FCAFC 49. Following this announcement, the Government released a discussion paper in July 2012 titled Improving the tax treatment of bad debts in related party financing (Discussion Paper). Submissions on the Discussion Paper closed on 10 August 2012 and it is now for the Government to determine the way forward having regard to the information obtained during the consultation process. Position under the current law Under the current law, a creditor is entitled to a deduction under section of the ITAA97 for a bad debt which the creditor writes off as such in an income year if the amount that gave rise to the bad debt was included in the creditor s assessable income, or it is in respect of money that the creditor lent in the ordinary course of its business of lending money. In the alternative, the deduction may also be available under the general deduction provision, section 8-1 of the ITAA97. For those taxpayers subject to the taxation of financial arrangements regime, a deduction may arise under Division 230 of the ITAA97. For the purposes of the commentary that follows, it is assumed that the deduction is claimed under section of the ITAA97. Conversely, generally the write-off and extinguishment (eg by forgiveness) of a bad debt does not give rise to assessable income for the debtor unless it is carrying on a money lending business. In the event that the debt is extinguished, the commercial debt forgiveness rules in Division 245 of the ITAA97 may operate to reduce tax attributes (revenue and capital losses, certain deductions and cost bases of assets) of the debtor. Proposed position under the Discussion Paper The proposal in the Discussion Paper is that a creditor will be denied a tax deduction for writing off a bad debt where the debtor is a related party and the amount that gives rise to the bad debt has not been included in the creditor s assessable income. Instead, the creditor may have a capital loss in respect of the written-off bad debt (it is unclear in the Discussion Paper whether a capital loss will only arise where a CGT event happens in conjunction with the write-off). The corresponding gain to the debtor will also be characterised as capital in nature and not taxed even where the debtor is carrying on a money lending business. The commercial debt forgiveness rules may still apply where the debt is extinguished. The stated purpose of the proposed changes is to introduce better symmetry between the tax treatment of the creditor and debtor where they are related parties but not members of a consolidated group. A related party will be defined as an associate (as defined in section 318 of the Income Tax Assessment Act 1936 (ITAA36)) or an associated entity (as defined in section of the ITAA97). This includes two entities where one has FOR MORE INFORMATION CONTACT: Kathryn Bertram Senior Associate Tel kathryn.bertram@corrs.com.au Stewart Grieve Partner Tel stewart.grieve@corrs.com.au

3 sufficient influence over the affairs of the other. The measures do not apply to the intra-group debts of consolidated groups. This is because there is already symmetry between the tax treatment of the creditor and debtor in a tax consolidated group as the tax consequences of these intra-group loans are effectively ignored under the single entity rule. Below is a table which summarises the different possible tax treatments of a bad debt write-off (not involving an extinguishment of debt) and a forgiveness of debt, under the proposed changes to the law. BAD DEBT WRITE OFF DEBT FORGIVENESS Current law Proposed law Current law Proposed law Consolidated group No consequences. No consequences. Related parties not in same consolidated group Not related parties Creditor May be entitled to tax deduction. 1 No tax deduction unless debt previously returned as assessable. 2 May be entitled to capital loss if no tax deduction on write-off. Debtor No consequences. If taxpayer carries on a money-lending business, the gain may be included in assessable income. Alternatively, tax attributes 3 may be reduced under Div 245 ITAA97. May be entitled to capital loss if no tax deduction or capital loss on write-off. Tax attributes 3 may be reduced under Div 245 ITAA97. Creditor May be entitled to tax deduction. 1 May be entitled to capital loss if no tax deduction for write-off. Debtor No consequences. If taxpayer carries on a money-lending business, gain included in assessable income. Alternatively, tax attributes 3 may be reduced under Div 245 ITAA97. 1 Pursuant to sections or 8-1 ITAA97. 2 It is unclear under the proposal whether the creditor is entitled to a capital loss on the write-off of the debt (assuming no tax deduction entitlement) or only if a CGT event (eg extinguishment) happens in relation to the debt. 3 Tax attributes include revenue and capital losses, certain deductions and cost bases of CGT assets.

4 Australian Taxation Office Compliance Program By Charlotte Poole and Reynah Tang On 19 July the Australian Taxation Office (ATO) released its annual compliance program for This program sets out what the ATO considers are the most significant tax compliance risks for the year ahead and the steps it will be taking to address those risks. For large taxpayers, it is worth becoming familiar with the year s compliance program. By identifying the ATO s compliance focus for the year, the program may assist taxpayers to assess the adequacy or effectiveness of their own compliance activities, and to identify matters at particular risk of investigation by the ATO, having regard to where they fit in the ATO s risk differentiation framework and its attempts to move towards a real-time compliance environment. The following table provides a breakdown of the key focus of the ATO s compliance program for : FOR MORE INFORMATION CONTACT: Charlotte Poole Lawyer Tel charlotte.poole@corrs.com.au Reynah Tang Partner Tel reynah.tang@corrs.com.au AREA OF COMPLIANCE RISK Taxation of financial arrangements (TOFA) Implementation of TOFA Profit shifting Transfer pricing and thin capitalisation Corporate restructures Including mergers and acquisitions ATO FOCUS Restructuring before entry into TOFA Calculation of the balancing adjustment for TOFA taxpayers who have made a transitional election to bring in their existing financial arrangements Validity of elections made under the TOFA rules Application of the TOFA tax timing methods, including compliance with the hedging method recording requirements Entities that satisfy the safe harbour debt amount test but have significant asset revaluation values for thin capitalisation purposes, and entities that may not otherwise pass the safe harbour debt amount without such values Complex or novel financial arrangements with unnecessary steps that are not explained by the business needs of the parties PROPOSED ATO COMPLIANCE ACTIVITY 35 reviews 25 reviews 29 audits 40 Advance Pricing Arrangements 15 mutual agreement procedures 20 reviews Consolidation Changes to effective ownership or control of businesses or assets where the appropriate taxing point is deferred or avoided Capital-raising risks and other financing arrangements Pre-restructuring activities Application of recent changes to the consolidation provisions (relating to the operation of the consolidation tax cost setting and rights to future income rules) Inclusion of foreign partnerships in consolidated groups for the apparent purpose of creating interest deductions in two countries Number not provided

5 AREA OF COMPLIANCE RISK R&D claims Wrap-up claims under the outgoing R&D tax concession Interpretation of new R&D tax incentive provisions GST Integrity of business systems ATO FOCUS Taxpayers who make excessive incremental claims in the final year under the outgoing R&D tax concession Taxpayers who lodge large amendment claims that cannot readily be substantiated Taxpayers who fail to apply the new dominant purpose exclusion test to supporting activities Taxpayers who claim refundable offsets to which they are not entitled Taxpayers who do not correctly apply the feedstock provisions Identifying errors made by businesses that relate to their business systems, with a particular focus on the mining, manufacturing, wholesale trade and financial and insurance services industries PROPOSED ATO COMPLIANCE ACTIVITY Number not provided More than 500 reviews and audits Financial supplies Apportionment of input tax credits on financial supplies 50 reviews and audits Mergers and acquisitions, with focus on the highest risk transactions Taxation of alternative fuels Large excise payers who are licensed to manufacture, store and/or import gaseous fuels Number not provided Clean energy measures fuel tax Supporting large businesses in implementing the changes to excise and fuel tax credits amendments flowing from the clean energy measures Number not provided MRRT and PRRT The reasonable valuation of assets for starting base purposes, with particular attention Number not provided paid to market valuations and the determination of the effective life of those assets Identification of mining project interests Methods used to calculate the revenue at valuation point, including application of the arm s length principle Claims for deductible upstream expenditure, with particular focus on allocation and apportionment methods Allowance and transfers Governance arrangements and adaptation of business systems for the new arrangements In addition to these key focus areas, the ATO will continue to monitor a wide range of other issues including: Private equity holding structures and associated arrangements; Claims for immediate deductions for mining, quarrying and prospecting rights; GST risks arising from the sale, transfer and acquisition of real property, particularly where the margin scheme is applied; The use of hybrid entities and instruments; Withholding tax in relation to intellectual property contracts; Managed investment trust withholding and tax compliance; and Financing arrangements undertaken by stapled groups. It is shaping up to be another challenging year for taxpayers in dealing with the ATO. For our thinking on how best to meet the challenge, please refer to thinking/insights/got-a-tax-dispute-with-theato-time-may-be-ripe-to-pursue-a-resolution/.

6 The Director Penalty Regime: increasing director obligations By Jonathon Leek and Kimberley Levi Recent amendments to the director penalty regime increased directors obligations and responsibilities in ensuring that certain company taxes are paid. The director penalty regime was introduced in 1993 to ensure directors cause their company to meet certain tax obligations or to promptly place the company into liquidation or voluntary administration. The law before 29 July 2012 Under the director penalty regime, directors of companies that fail to comply with their obligation to pay amounts withheld under the PAYG withholding regime to the Commissioner are held personally liable to a penalty equal to the amount that the company should have paid. The Commissioner cannot commence proceedings to recover a director penalty until 21 days after the director is given a written penalty notice. If before the 21 day notice period has expired, the debt is paid, or an administrator or liquidator is appointed to the company, the director s personal liability is extinguished. The need for change Some aspects of the previously existing director penalty regime limited its efficacy. Notably, some directors would wait until receiving a penalty notice before appointing an administrator or liquidator to the company. The result being that the full amount of PAYG withholding liabilities was not recovered by the Commissioner and the directors were not held liable. Directors also received the benefit of PAYG withholding credits, even if the company failed to pay the PAYG withholding liabilities. The law from 29 July 2012 A broader and more stringent director penalty regime was implemented from 29 July The director penalty regime has been extended to make directors personally liable for unpaid superannuation guarantee charges. Directors can no longer discharge their director penalty by placing the company into administration or liquidation if their PAYG withholding or superannuation charge remains unpaid and unreported for 3 months after the liability was due. In some instances, directors and their associates (including relatives, partners, a spouse and children of the director) who are entitled to the benefit of PAYG withholding credits, may be liable to a PAYG withholding non-compliance tax if the company has failed to pay amounts withheld to the Commissioner. To avoid these penalties, directors should ensure that their companies pay their PAYG withholding and superannuation contributions to the Commissioner on time. If the company is unable pay the required amount, directors should appoint a liquidator or administrator within 3 months of the due date. * For a comparision of the old law to the new law please see the table on the following page. FOR MORE INFORMATION CONTACT: Kimberley Levi Lawyer Tel kimberley.levi@corrs.com.au Jonathon Leek Partner Tel jonathon.leek@corrs.com.au

7 Liability Director penalty notice Extinguishing personal liability Directors defences PAYG withholding noncompliance tax PREVIOUS LAW Directors are personally liable for their company s unpaid PAYG withholding amounts. The Commissioner may seek to recover a director penalty by issuing a director penalty notice. The Commissioner could only commence proceedings to recover the penalty 21 days after the notice was issued. A director can extinguish their personal liability if, before the 21 day notice period has expired, the debt is paid, or they appoint an administrator or liquidator to the company. A director has a defence if the director had an illness that prevented him/her participating in the management of the company, or took all reasonable steps to ensure compliance. Directors and their associates were entitled to the benefit of PAYG withholding credits withheld by the company from a payment made to them, regardless of whether the company paid the PAYG withholding amounts to the Commissioner. NEW LAW Directors are personally liable for their company s unpaid PAYG withholding amounts and superannuation guarantee charge. In addition to the requirement that the Commissioner serve notice on a director, the Commissioner may also serve a copy of the notice on the director at his or her tax agent s address. The current law continues to apply, but a director cannot extinguish their personal liability by appointing an administrator or liquidator if 3 months has lapsed after the due date for the liability and the liability remains unpaid and unreported. In addition to these defences, a director will not be liable for an unpaid superannuation charge if the company treated the Superannuation Guarantee (Administration) Act 1992 as applying to a matter in a way that was reasonably arguable and the company took reasonable care in applying the Superannuation Guarantee (Administration) Act 1992 to the matter. In some instances, directors and their associates who are entitled to the benefit of PAYG withholding credits may be liable to PAYG withholding non-compliance tax if the company has failed to pay amounts withheld to the Commissioner.