Submission to the Treasury of the Australian Government

Transcription

1 Submission to the Treasury of the Australian Government Exposure Draft - Managed Investment Trusts: Capital Account Treatment Karen Payne karen.payne@minterellison.com Peter Capodistrias peter.capodistrias@minterellison.com MinterEllison L A W Y E R S AURORA PLACE, 88 PHILLIP STREET, SYDNEY NSW 2000, DX 117 SYDNEY TEL: FAX:

2 1. Introduction (a) Minter Ellison welcomes the announcement by the Assistant Treasurer on 10 December 2009 releasing for public consultation the Government's draft legislation, together with explanatory material on the proposed changes to the taxation of gains and losses on disposal of certain investments by eligible managed investment trusts (MITs). We consider that the proposed capital account election will provide greater certainty for investors and fund managers alike in the Australian financial services sector. We consider this increased certainty is a positive step in promoting Australia as a financial services hub. We take this opportunity to provide our comments, observations and submissions in respect of the proposed legislative changes as outlined in the exposure draft legislation released by Treasury. We trust our comments are of assistance. Please do not hesitate to contact me should you wish to discuss any of these matters further. Karen Payne Peter Capodistrias Partner Taxation Partner Taxation Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 2

3 2. The definition of Managed Investment Trust 2.1 Background (a) We understand that there will be five ways in which a trust (that has an Australian resident trustee or central management and control of the trust is in Australia) may qualify as a MIT for the purposes of the capital account treatment, namely: The trust is operated by a financial services licensee whose licence covers operating such a managed investment scheme (MIS) (as defined by section 761A of the Corporations Act 2001) and: (A) (B) (C) the units in the trust are listed for quotation in the official list of an approved stock exchange in Australia; the trust has at least 50 members (ignoring objects of a trust); or one of the members of the trust is one of the following: a life insurance company; a complying superannuation fund; a complying approved deposit fund; a foreign superannuation fund (which has at least 50 members); a trust that qualifies as a MIT and the units in the trust are either listed or the trust has at least 50 members (ignoring objects of a trust); an entity that is recognised under foreign law relating to corporate regulation, as an entity with a similar status to a managed investment scheme and that has at least 50 members; or interests which are owned directly by one of the abovementioned entities or indirectly through a chain of trusts provided the Residency and Licensing requirements (detailed above) are satisfied for the trust or each trust in the chain. The Fund is a trust which is operated has a licensed trustee where all of the members of the trust are one or more of the following: a MIT; a life insurance company; a complying superannuation fund; a complying approved deposit fund; or a foreign superannuation fund (which has at least 50 members). (iii) The Fund is a trust and every member is a MIT; (iv) The Fund is a trust which has a licensed trustee and where there are at least 50 members on the register of the unit trust; or Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 3

4 (v) The Fund is an unregistered managed investment scheme (as defined in section 9 of the Corporations Act 2001) and the Fund would be required to be operated by a financial services licensee but for the following: (A) (B) subsection 5A(4) of the Corporations Act 2001 provides that the Crown is not bound by Chapter 6CA or 7 or the Corporations Act 2001; or any instrument issued by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001 has effect in relation to the entity or the scheme. A trust will not qualify as a MIT under alternative where a foreign resident individual directly or indirectly: (iii) holds or has the right to acquire interests representing 10% or more of the value of the interests in the trust; has control or the ability to control 10% or more of the rights attaching to membership interests in the trust; or has the right to receive 10% or more of any distribution of income of the trust that the trustee may make. Also, a trust will not be an eligible MIT where at any time in the income year twenty (20) or fewer individuals (being natural persons) hold or have the right to acquire (either directly or indirectly) 75% or more of the beneficial interests in the income or property of the trust. That is, a trust that is closely held is not an eligible MIT. (e) To determine if a trust is closely held, the trustee will need to trace back through interposed entities (such as companies, unit trusts, partnerships and superannuation funds) to identify if 20 or fewer individuals control 75% or more of the rights to income and property. However practically, this tracing requirement is avoided if interposed entities confirm their membership numbers exceed 50 members since the tracing exercise requires the MIT to trace back to natural persons unless any interposed company, complying superannuation fund, complying approved deposit fund or superannuation fund for foreign residents itself has 50 or more members. Where one of the MIT members has more than 50 members then the MIT will not be closely held. 2.2 Single Definition of MIT (a) We submit that the definition of a MIT should be the same for both MIT withholding and deemed capital account treatment purposes. We submit that the definition of an eligible MIT should be a single definition as follows: Item Condition 1 At the start and end of the income year the trustee must be an Australian resident; or At all times during the income year the central management and control of the trust was in Australia. 2 the trust is a managed investment scheme (as defined by section 9 of the Corporations Act 2001) and operated by a financial services Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 4

5 Item Condition licensee (as defined by section 761A of the Corporations Act 2001); and 3 the trust is a widely held trust. A widely held trust is a trust that has 50 or more members (either directly or indirectly) and for this purpose a trust will be deemed to be a widely held trust where: (A) (B) the units in the trust are listed for quotation in the official list of an approved stock exchange in Australia; or one of the members of the trust is one of the following: a life insurance company; a complying superannuation fund (which has at least 50 members); a complying approved deposit fund (which has at least 50 members); a foreign superannuation fund (which has at least 50 members); a trust that qualifies as a MIT and the units in the trust are either listed or the trust has at least 50 members (ignoring objects of a trust); an entity that is recognised under foreign law relating to corporate regulation, as an entity with a similar status to a managed investment scheme and that has at least 50 members; a sovereign wealth fund*; the Crown; and interests which are owned directly by one of the abovementioned entities or indirectly through a chain of trusts provided Item 1 and 2 are satisfied for the trust or each trust in the chain. We consider that this approach is consistent with the approach outlined in section in Schedule 2F of the Income Tax Assessment Act 1936 and will allow a mirror treatment for the purposes of excluding closely held trusts. We note that the definition of a sovereign wealth fund is to be considered as part of the Treasury review announced on 30 November Proposed Tax Changes to Provide Certainty to Sovereign Investments. 2.3 The trust is operated by a financial services licensee (a) We consider that the current requirement in the MIT withholding rules that the trust is a managed investment scheme (as defined in section 9 of the Corporations Act 2001) and is operated by a financial services licensee (as defined by section 761A of the Corporations Act 2001) whose licence covers operating such a managed investment scheme is unnecessarily restrictive refer paragraph 2.1(a). An Australian Financial Services License (AFSL) authorises a licensee to carry on a financial services business as detailed in Appendix One. Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 5

6 Under the current definition, there is some uncertainty as to whether an unregistered scheme with a licensed trustee can qualify as a MIT. On one view, since there is no requirement to have an unregistered scheme named in a licence issued to cover the operation of such a scheme, then the licence will not cover operating such a managed investment scheme. This is certainly the view of the Australian Taxation Office as outlined in ATO ID 2009/150 Income Tax: PAYG withholding: meaning of managed investment trust. We understand that the requirement for a licensed trustee is an integrity measure. However, we are of the view that the requirement that the "licence covers operating such a managed investment scheme" should include managed investment schemes which have a licensed trustee since an AFSL allows the trustee to operate the scheme in the sense of: (iii) (iv) providing financial product advice; dealing in a financial products by issuing units; making a market for financial products; and providing custodial or depository services. (e) (f) We provide a sample of the matters that may be covered by an AFSL in Appendix One for your information. A requirement that the trust is operated by a financial services licensee should be sufficient to ensure that the integrity concerns and trust operations are properly managed. That is, there is no need to restrict the licence requirements to registered managed investment schemes. 2.4 Satisfying the closely held requirement in the year the trust is created (a) The proposed section 275-5(2) provides that a managed investment trust can qualify as a MIT where: (iii) the trust has an Australian resident trustee or is centrally managed and controlled in Australia; the trust is operated by a financial services licensee; and the trust is either: (A) (B) created during the income year; or ceases to exist during the income year, and was a managed investment trust in relation to the previous income year. Proposed section 275-5(7), however, provides that even where a trust qualifies as a MIT, it will not be treated as an eligible MIT in relation to an income year if it is a closely held trust at any time in the income year. That is, it appears that a trust cannot qualify as an eligible MIT where it is closely held in its start-up year. The consequences of failing to make an election in the first year in which the Fund qualifies as a MIT are deemed revenue treatment. Accordingly, we consider that the requirements for a start up year should be absolutely certain (since a failure to make an election results in a deemed revenue treatment. We recommend that the legislation make clear whether the widely held requirement must also be satisfied in the start up year (that Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 6

7 is, whether a MIT which is closely held in its start up year can or cannot be an eligible MIT). 3. Reliance on the concept of Fixed Entitlements (a) Proposed section 275-5(7) relies on the definition of "closely held trust" in section of the Schedule 2F of the ITAA This definition relies on an individual having a "fixed entitlement" to a 75% or greater share of the income of the trust. We note that there is significant uncertainty as to what constitutes a fixed entitlement. We understand that this issue has been raised previously with Treasury. We recommend that the somewhat uncertain concept of fixed entitlement should be replaced with a requirement in the following terms: " 20 or fewer individuals hold or have a right to acquire 75% or more of the beneficial interests in the income or property of the trust." 4. Extend deemed capital account treatment to non-resident collective investment vehicles (a) We understand the Australian Government is committed to make Australia a financial services hub in Asia by ensuring Australia s tax arrangements do not create unnecessary or unintended barriers to investment in Australian managed funds. We consider that in the interests of this policy objective, the deemed capital account election should also extend to eligible non-resident collective investment vehicles. Accordingly, we recommend the Government consider whether eligible non-resident collective investment vehicles should similarly be entitled to elect deemed capital account treatment so they have the benefit of greater certainty in relation to their tax affairs from investing in Australia. We consider that this should be considered particularly in relation to investments in listed Australian securities since there is increased market uncertainty arising following the recent actions by the Australian Taxation Office against the Texas Pacific Group. This uncertainty will discourage Australian investment or at least in relation to securities that may trade on Australian exchanges and this is contrary to the objective of creating Australia as a financial services hub. 5. Covered assets (a) We suggest that as other provisions in the legislation broadly treat non-share equity interests in the same manner as a company, the definition in section should include a non-share equity interests. The definition should also include a share in an foreign hybrid which is consistent with the definition of "eligible investment business" in section 102M of the ITAA Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 7

8 6. Carried interests in MITs (a) The exposure draft legislation provides that a 'carried interest entitlement' held in an eligible MIT (for example a private equity fund) is taxable in full and no capital gains tax (CGT) discount is available in respect of a distribution or any CGT Event that arises in relation to the asset that has the 'carried interest entitlement'. Contrary to the press release from the Assistant Treasurer, the legislation does not deem the amount to be a revenue gain but simply denies the CGT discount in respect of such entitlements. These gains may continue to be either revenue or capital gains but in either case will be taxable in full. We agree that there should not be a deemed revenue treatment for carried interest entitlements as set out in the exposure draft legislation refer our comments below. Any CGT asset that carries an entitlement to a distribution from a MIT which is contingent on the attainment of profits by the MIT and which is acquired because of services provided to the MIT by the holder or its associate is a carried interest entitlement. The services to be provided are services of a: manager; or an employee (or associate) of a manager of the MIT. The inclusion of employees in the carried interest entitlement potentially restricts the ability of employers to require co-investment by their Executive team. We note that coinvestment is a legitimate way to align the Executives with the long term interests of the employer. Accordingly, the proposed arrangements may commercially 'dis-incentivise' employees from investing in an employer. Employee Share Schemes (e) (f) Where the MIT is part of a stapled structure with a company, arguably employees of the stapled group who participate in the employee share scheme of the stapled entity may be denied the CGT discount on the basis that they are associated with the manager of the trust (where the manager of the trust is a subsidiary of the head company and the employees are employed by an associate subsidiary of the head company). Whether the proposed amendments are intended to capture these 'ordinary' employee share scheme arrangements is unclear. We consider that the position with respect to employee share schemes should be clarified so that these employee share schemes are not inadvertently included as carried interest entitlements or adversely affected by the carried interest treatment. Venture Capital Limited Partnerships (g) A deemed capital treatment regime currently exists under Sub-Division 118-F of the ITAA 1997 for the following limited partnerships: (iii) Venture Capital Limited Partnerships (VCLP), Early Stage Venture Capital Limited Partnerships (ESVCLP); or Australian Venture Capital Fund of Funds (AFOF). Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 8

9 (h) (j) (k) (l) (m) (n) Each of the above limited partnerships are treated as fiscally transparent entities and would otherwise be subject to Division 5A of the ITAA 1936 that is, they would otherwise be taxed as companies. A deemed capital treatment is provided under Sub-Division 118-F for certain non-resident limited partners on their share of gains and losses made by a VCLP, ESVCLP or AFOF on the disposal of eligible venture capital investments. That is, such gains and losses are disregarded for CGT purposes and are exempt income (and accordingly are not ordinary income) refer sections and of the ITAA A deemed capital treatment is also provided to the Australian general partner of VCLPs, ESVCLPs or AFOFs in respect of their 'carried interests' refer CGT event K9 and section of the ITAA The general partner would typically be a unit trust that is treated as a fiscally transparent entity and so is eligible to pass through the CGT discount to its unitholders. CGT event K9 operates to tax as a capital gain the general partners entitlement to a distribution on the attainment of profits for the limited partners (ie; the "carried interest") of the VCLP, ESVCLP or AFOF. Importantly, for general partners, where the carried interest arises under a partnership agreement which was entered into at least 12 months before the CGT event happened, CGT event K9 capital gains are eligible for the CGT discount (subject to the other requirements for the CGT discount being met). Any overlap between CGT treatment of a "carried interest" with ordinary income is addressed by s , which provides a priority capital treatment (and excludes the operation of the ordinary income, statutory income and s priority from operating). This is in contrast to the proposed treatment of carried interests held in an eligible MIT. A MIT manager in receipt of a carried interest distribution is required to include in their assessable income the amount of any distribution arising from their carried interest entitlement. This appears to be an amount of statutory income. However, whether this is a revenue or capital gain is not prescribed under the exposure draft legislation but in any case a CGT discount is not available. This does not assist non-residents determine the tax treatment required in relation to any distribution made on a carried interest entitlement and where capital treatment may otherwise require that a gain is to be disregarded. That is, where a gain would be disregarded under Division 855, then consistent with the Government's current policy regarding the taxation of non residents, we consider that Division 855 should prevail over the proposed (2). This also appears to be consistent with the 115-C carve out since non-residents that are required to disregard a capital gain would not otherwise be eligible for a CGT discount. We consider the policy intent of the Government in relation to non residents should be clarified under the legislation. We also consider that the Government should clarify the distinction between the carried interests entitlements held through VCLP, ESVCLP and AFOFs and eligible MITs and in particular confirm that there is no intention to change the tax treatment for non resident investors in VCLPs, ESVCLPs and AFOFs. Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 9

10 Appendix One - Australian financial services licence conditions (extracted from ASIC Pro Forma 209) This licence authorises the licensee to carry on a financial services business to: (a) provide financial product advice for the following classes of financial products: [all products listed]; and deal in a financial product by: issuing, applying for, acquiring, varying or disposing of a financial product in respect of the following classes of financial products; and (A) [all products listed]; and applying for, acquiring, varying or disposing of a financial product on behalf of another person in respect of the following classes of financial products: (A) [all products listed]; and (iii) underwriting: (A) [securities or managed investment interests]; and (iv) arranging for another person to issue, apply for, acquire, vary or dispose of a financial product in respect of the following classes of financial products: (A) [all products listed] (v) arranging for another person to apply for, acquire, vary or dispose of a financial product in respect of the following classes of financial products (A) [all products listed] (vi) arranging for another person to underwrite: (A) [securities or managed investment interests] make a market for the following financial products: [all products listed]; and operate the following kinds of registered managed investment schemes (including the holding of any incidental property) in its capacity as responsible entity of: [insert name of scheme] scheme, a scheme which only holds [insert kind of scheme] (ARSN: xxx xxx xxx); and/or [insert kind(s) of scheme]; and (e) provide the following custodial or depository services: [all services listed]; to retail and/or wholesale clients. Minter Ellison Ref: Karen Payne Submission to the Treasury of the Australian Government page 10