Large business and tax compliance

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1 Overview for Large business Large business and tax compliance COVER ICON HEAD Cover icon text For more information visit ato.gov.au NAT

2 OUR COMMITMENT TO YOU We are committed to providing you with accurate, consistent and clear information to help you understand your rights and entitlements and meet your obligations. If you follow our information in this publication and it turns out to be incorrect, or it is misleading and you make a mistake as a result, we must still apply the law correctly. If that means you owe us money, we must ask you to pay it but we will not charge you a penalty. Also, if you acted reasonably and in good faith we will not charge you interest. If you make an honest mistake in trying to follow our information in this publication and you owe us money as a result, we will not charge you a penalty. However, we will ask you to pay the money, and we may also charge you interest. If correcting the mistake means we owe you money, we will pay it to you. We will also pay you any interest you are entitled to. If you feel that this publication does not fully cover your circumstances, or you are unsure how it applies to you, you can seek further assistance from us. We regularly revise our publications to take account of any changes to the law, so make sure that you have the latest information. If you are unsure, you can check for more recent information on our website at ato.gov.au or contact us. This publication was current at May AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA, 2014 You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products). PUBLISHED BY Australian Taxation Office Canberra May 2014 JS 31118

3 FOREWORD Large businesses contribute significantly to Australia s economy and society, providing employment, infrastructure and tax revenue to support our nation and its people. This updated edition of the Large business and tax compliance publication reaffirms our commitment to fairly administering the tax and superannuation system and our continued commitment to operate with you in an environment of mutual respect and honesty. As trusted stewards of our tax and super system, we must keep pace with the expectations of our clients. Simplifying our processes, increasing our electronic interactions, streamlining our website, and offering contemporary and innovative services are some of the ways we re reducing red tape to make compliance faster and easier for you and your business. Other ways we re working to improve our systems and interactions include: Engaging early with you on ruling requests, to ensure a much more timely service. Adopting a more tailored and streamlined approach to review and audit processes. Offering an independent review of decisions made as a result of our compliance activities. Working with Treasury to shape law and policy design. Engaging with stakeholders to understand the position of taxpayers and advisers, industry groups, partner agencies and government working with the right people, on the right issues, at the right time. Revamping our external consultation processes and seeking your feedback about what s working and what s not, particularly when we are developing new services and products. Greater online access to ATO systems. We are ensuring our management of compliance risk remains contemporary. We are working with G20 members to address the challenges of an increasingly global and digitised world, utilising multilateral, automatic exchange of information agreements. We know that meeting your tax obligations takes time and resources. That is why we are working to transform our approach and streamline our interactions to help you spend more time getting on with business and to help us better serve the community. Chris Jordan Commissioner LARGE BUSINESS AND TAX COMPLIANCE iii

4 CONTENTS Foreword Introduction iii iv How we support tax-risk management 11 Tax-risk management and governance checklists THE LARGE BUSINESS MARKET 3 Large business is important compliance matters 3 Working together 3 Large market profile 3 Key roles in tax management 5 Role of the corporate board 6 Our role 6 Role of external scrutineers 6 02 OUR APPROACH 7 How we approach compliance and how large business can expect to interact with us 7 Compliance in focus 8 Risk management approach 8 Checklist of what will attract our attention 9 BISEP model 9 If you are not satisfied 9 03 GOOD TAX GOVERNANCE 10 Sound tax risk management processes 10 What does good corporate governance look like? 10 Strategic level 10 Operational level 10 Record keeping 10 WORKING TOGETHER WITH LARGE BUSINESS 12 Services we provide and how we work together 12 Working together on the system 12 How we communicate with you 12 General services 13 Client services 13 Specialised services 14 Your feedback OBTAINING CERTAINTY 15 Our law advice services and how to use them effectively 15 How we provide advice 15 Types of information we provide COOPERATIVE COMPLIANCE 19 Taxpayer initiated processes 19 Voluntary disclosures 19 Self-amendments 19 Reportable tax position schedule 20 Annual compliance arrangements 20 Advance pricing arrangements 21 Mutual agreement procedure 21 Tax issues entry system 21 LARGE BUSINESS AND TAX COMPLIANCE 1

5 CONTENTS 07 HOW WE MANAGE TAX RISK 22 How you choose to manage tax risk determines how we engage with you 22 Risk-differentiation framework 23 Factors we use to determine your RDF categorisation 23 How we use the RDF to address tax risk 24 Our approach 25 Identifying compliance risks ACTIVE COMPLIANCE APPROACHES 26 Our typical processes for addressing tax risks and issues 26 Assurance and indirect taxes 26 Risk reviews 27 Audit 28 Mutual expectations during compliance activities 28 Escalating issues 28 Understanding your business 29 Gathering information 29 Informal approaches 29 Formal approaches 30 Determining our position 31 Independent review of position papers 31 General Anti-Avoidance Rules Panel 32 Assessment and amendment periods 32 Penalties and interest RESOLVING DISPUTES 35 Cooperative approach to resolving disputes 35 Collecting tax when there is a dispute 35 Alternative dispute resolution 35 Objections 36 Early engagement 36 Settlements 36 Litigation 37 Prosecutions APPENDIXES 38 appendix 1 The Bisep model 38 Appendix 2 Consultative arrangements 39 Appendix 3 Rulings process 40 Appendix 4 Review types 42 Appendix 5 Pre lodgment compliance review process 43 Appendix 6 Post lodgment compliance review process 45 Appendix 7 Audit process 47 Feedback 51 2 LARGE BUSINESS AND TAX COMPLIANCE

6 THE LARGE BUSINESS MARKET 01 LARGE BUSINESS IS IMPORTANT COMPLIANCE MATTERS Large business is important to the Australian economy and to our whole tax system. Our aim is to work with you to improve how the tax system works for your business. Developing a better understanding of each other is an essential first step. Large business plays a crucial role in the revenue system by paying and withholding taxes and contributing to and managing superannuation on their employees behalf. You also act as intermediaries in managing tax related transactions between us and other taxpayers by providing financial facilities used by others. To support your important role in the tax system, we work to ensure our services are focused on making it easier to comply with tax laws, helping to reduce your compliance costs and supporting voluntary compliance. This approach seeks to ensure that the right amount of tax is paid in Australia. WORKING TOGETHER We are committed to building relationships with you through consultation and developing mutual expectations. The importance of large business and its overall contribution means it plays a significant role in the tax system. Collaboration allows us to ensure that the tax system operates as efficiently as possible. LARGE MARKET PROFILE FIGURE 1: Supporting voluntary compliance in the large business market Scanned using a variety of risk filters 100% Formally risk reviewed 30% Reviewed in detail Formally risk reviewed 30% Reviewed (30%) Audited (5.5%) Adjusted (4.0%) Disputed (1.0%) Settled (0.3%) Confirmed as compliant by the courts (0.3%) LARGE BUSINESS AND TAX COMPLIANCE 3

7 01 The large business market There are 1,800 economic groups and entities in the large market, encompassing over 35,000 businesses. The types of entities include mainly companies, but also government departments, partnerships, trusts, non-profit organisations and superannuation funds. Of the 1,800 economic groups, approximately three-fifths (1,000) are public companies and 1,100 have an annual turnover greater than $250 million. The remainder are businesses that due to their unique characteristics are managed within the large market. Large market taxpayers are registered for a range of tax obligations, including GST, fringe benefits tax (FBT), income tax, fuel tax credits, luxury car tax and wine equalisation tax (WET), and may also be licensed for excise purposes. In the financial year, total tax receipts collected from large business were: 43% of total net income tax, comprising 63% ($35.1 billion) of company tax 100% ($0.8 billion) of petroleum resource rent tax 43% ($1.4 billion) of FBT 82% ($5.3 billion) of super fund income tax 33% ($43.9 billion) of pay as you go withholding tax on behalf of individuals 46% ($21.3 billion) of total net GST 98% ($25.3 billion) of excise tax. At the same time, the large market encompasses: 80 large super funds that report a total of 19,000,000 member accounts more than $200 billion in international related party dealings, accounting for 36% of Australia s trade. In monitoring compliance for income tax (figure 1), 100% of large corporate groups are scanned using a variety of risk filters to detect financial patterns that may indicate potential non-compliant positions, for example, abnormally low tax payments compared to industry peers or high-risk transactions or arrangements that have not been disclosed. Additionally, about 30% of the large population are formally risk reviewed each year, focusing on those considered to present higher relative risk, taking into account likelihood of noncompliance and the potential consequences. About 18% of those reviewed are then audited, and approximately 70% of those audited have adjustments. About 30% or so of those adjustments are disputed, and about 30% of those disputes will be settled, under strict guidelines. Of the relatively few cases that continue through to the court system, between 30% to 50% will be found to have been ultimately compliant by the courts. Our view is confirmed in 50 70% of cases taken to the court, providing certainty to the market. In monitoring compliance for GST and excise, we constantly monitor activity statements and other information relating to GST and excise to identify potential risks and issues. Each year, we contact about 10% of large businesses and undertake a risk review relating to GST or excise. About 9% of these reviews proceed to an audit, with 21% of these cases requiring an adjustment. The majority of large businesses are compliant, however we still have concerns about opportunistic tax planning in a relatively small group of large businesses and we will have an intense focus on these businesses. In , for the first time we informed most large business in a single letter about our view of their relative risk of noncompliance for GST, income tax and excise. Figure 2 shows the risk categorisations for large businesses with GST, income tax and excise obligations. For these large businesses: 13 were categorised as higher risk and were advised that they could expect fairly intense and constant interactions with us regarding their tax affairs about 130 were regarded as key taxpayers and were told that we would work closely with them to monitor their tax liabilities and provide certainty about 400 medium risk taxpayers were told that our preliminary risk assessment had identified that there were one or more areas of tax risk where we may need to make further enquires about their tax affairs about 680 were lower risk and told we had no further queries and that their income tax return and/or GST affairs and excise returns for were now finalised. FIGURE 2: Risk categorisation by tax Higher risk Key taxpayer Medium risk Lower risk GST Income tax Excise 4 LARGE BUSINESS AND TAX COMPLIANCE

8 01 The large business market Our relationship with large business is ongoing and we need to work cooperatively to make the administration of the tax laws work well. We work together by engaging in open and frank dialogue on material tax issues. This allows us to: have a common understanding of your business to facilitate the identification and evaluation of tax risks ensure documents are readily accessible, whether stored as a physical document or electronically discuss the basis of any claim you make for legal professional privilege, accountants concession or corporate board documents on tax compliance risk escalate concerns. Our aim is to assist you and encourage you to have adequate tax governance and tax risk management controls in place for transactions in Australia and internationally. We expect you to: pay the right amount of tax in the correct jurisdiction lodge and pay on time provide your staff with adequate taxation training and resourcing regularly report to your board. KEY ROLES IN TAX MANAGEMENT There are many roles within a large business that are pivotal in managing tax responsibilities, including the public officer, tax manager, chief financial officer and the board. Depending on the structure of your business, your tax function will be managed in a number of different ways. People with these responsibilities set the business compliance, operational and financial approaches to tax. As demonstrated in figure 3, an awareness of new and emerging risks and the implications for businesses will improve the management of tax implications of major transactions as they occur. We encourage those responsible for tax functions to ensure that sound organisational governance is in place to manage tax risks. We also encourage you to develop and maintain an open and cooperative relationship with us. FIGURE 3: Tax operating model Planning and transaction support Forcasting and budgeting Tax accounting Management reporting TAX RISK MANAGEMENT STRONG TECHNICAL TAX TEAM TAX STRATEGY TAX STRATEGY TAX RISK MANAGEMENT TAX TAX POLICIES STANDARD PROCESSES Cash tax management COMMON TECHNOLOGY TOOLS Tax authority management Tax compliance LARGE BUSINESS AND TAX COMPLIANCE 5

9 01 The large business market ROLE OF THE CORPORATE BOARD Board members play a crucial role in ensuring that strong corporate governance structures are established and maintained. We encourage board members to check that their business has a sound framework in place to manage tax risks and comply with tax obligations see chapter 7. Such governance and process obligations include: demonstrating an understanding of your risk categorisation ensuring a well resourced in-house tax governance capability exists to mitigate tax risk and provide a capacity to regularly audit tax governance systems having in place appropriate review and sign-off procedures for material transactions and reporting requirements, which ensure that significant tax risks are elevated to the board having systems to identify, assess, monitor and approve material tax issues. OUR ROLE We are responsible for the care of Australia s tax and superannuation systems and the Australian business register. In undertaking these responsibilities, we seek to achieve confidence in the administration of these systems. As part of our approach to encourage willing participation in these systems, we seek to create an environment that is conducive to high levels of voluntary compliance. You can expect us to: help you understand your rights and obligations make it as easy as possible for you to comply offer help in a variety of ways, including online services, publications and by phone deal with risks as they emerge or magnify administer the tax law at the minimum cost to you and other stakeholders. ROLE OF EXTERNAL SCRUTINEERS We are open and accountable in our administration of the tax system and are subject to review by external scrutineers including: Parliamentary committees the Inspector-General of Taxation the Commonwealth Ombudsman the Australian National Audit Office. We work closely with Treasury in developing new tax policy and legislation. We may refer matters to Treasury if the tax law is not consistent with policy, or produces unintended consequences or significant compliance costs. If appropriate we will collate and forward the concerns of large business to Treasury. However, we are not generally in a position to disclose these referrals to you because it is government policy that all interactions between the ATO and government are confidential. In addition, the Board of Taxation: advises the Treasurer on improving the general integrity and functioning of the tax system commissions research and other studies on tax matters approved or referred to it by the Treasurer. We encourage you to contribute to enquiries by our external reviewers as you consider appropriate. 6 LARGE BUSINESS AND TAX COMPLIANCE

10 OUR APPROACH 02 HOW WE APPROACH COMPLIANCE AND HOW LARGE BUSINESS CAN EXPECT TO INTERACT WITH US Our tax system is based on self assessment and voluntary compliance. We aim to have an open and cooperative relationship to support and facilitate you meeting your tax obligations. Our approach to working with large business is guided by the principles in the Taxpayers Charter and the compliance model. We differentiate our approach and level of engagement with you according to our assessment of your risk categorisation, as outlined in chapter 7. Our approach involves consulting, collaborating and co-designing with you to support voluntary compliance, manage tax risk and minimise compliance costs. We do this based on our understanding of tax law, the global tax environment, causes of non-compliance, your business environment and from a whole of tax system perspective. We work closely with large business, reflecting your importance in the effective operation of the tax system, and wherever possible provide certainty of tax outcomes for large complex transactions as they occur. We aim to help you manage your affairs by promoting open dialogue, strong corporate governance and a focus on how you can identify and manage tax risks. We work with you by: providing information to help identify and manage tax obligations developing administrative processes for new laws addressing your concerns about administrative matters or bringing them to the attention of Treasury providing forums, such as the Large Business Liaison Group and the National Tax Liaison Group to raise issues and explore the administration and operation of the tax system. To support an environment of self assessment we provide a range of products, advice and assurance services. This helps to reduce your compliance costs. We also work with foreign tax administrations and with our Joint International Tax Shelter Information Centre partners on international tax risks as they emerge, to support effective risk management around the world. Taxpayers Charter The Taxpayers Charter guides our interactions with all taxpayers. It sets out the way we conduct ourselves when dealing with you. It helps you understand your rights, your obligations and what you can do if you are not satisfied with our service or actions. In keeping with the Taxpayers Charter principles you can expect that we will: act in a professional, courteous and respectful manner and demonstrate integrity, fairness and impartiality in the conduct of our duties maintain open and frank dialogue, including informing you regularly of the progress of any compliance activity aim to make information requests clear and unambiguous complete a case in the shortest time practicable, with minimum inconvenience and disruption communicate in a timely manner advise you of delays or where timelines were extended and the reasons why notify you if an error is detected that has resulted in you paying more than the correct amount of tax recognise your right to have advisers present during discussions and meetings and allow you to confer with them as necessary recognise your right to claim legal professional privilege, the accountants concession, or that documents are corporate board documents on tax compliance risk. In turn, we expect that you will work with us cooperatively and communicate with us in a timely and open manner. For more information about the Taxpayers Charter, go to ato.gov.au/taxpayerscharter Our compliance model Our broad approach to compliance is captured in our compliance model. The model provides the framework we use to assess taxpayers and develop an appropriate response according to the nature and level of risk we identify, the causes of non-compliance and your level of cooperation with us. For more information, go to ato.gov.au/compliancemodel LARGE BUSINESS AND TAX COMPLIANCE 7

11 02 Our approach FIGURE 4: Compliance model Attitude to compliance Have decided not to comply Don t want to comply Try to, but don t always succeed Willing to do the right thing Nurturing willing participation Compliance strategy HIGH Use full force of the law Deter by detection Help to comply Make it easy Level of compliance costs LOW COMPLIANCE IN FOCUS Our publication, Compliance in focus, outlines how we encourage high levels of compliance with Australia s tax and super laws and details key areas of risk to compliance. It is our way of being transparent with the community about what risks we are seeing and what we will focus our resources on for the coming year. It outlines specific issues that will receive increased focus. We aim to encourage voluntary compliance, identify areas of the law that need clarification or are high risk, and address non-compliance. For more information, go to ato.gov.au/complianceinfocus RISK MANAGEMENT APPROACH In considering which large businesses may need to be reviewed and the frequency and intensity of the review, we assess the relative likelihood of you not meeting your tax obligations and the consequences of potential non-compliance. All large businesses are grouped into one of four broad risk categories each of which, from our perspective, has a suggested compliance approach for us to take see chapter 7. How we seek to understand your business We recognise that to establish a foundation for achieving cooperative compliance in the large market, we need a welldeveloped and thorough understanding of the world in which you operate and the realities of the commercial environment. This understanding takes into consideration both your domestic and international operations. We recognise that large business operates in a globally dynamic social, political and economic environment. Understanding these factors, as well as the policy, legislative and administrative processes of the law, enables us to make more informed judgments on large business behaviour and its possible impact on compliance. We use the business, industry, sociological, economic and psychological (BISEP) model to help us consider business behaviour in both domestic and international context. These broad areas reflect the fact that your compliance decisions are affected by a wide set of related factors see figure 5. Additionally in our risk profiling, which we undertake twice a year, we consider a number of other factors including your effective tax rates, your major transactions and other interactions with us, which we derive from a range of public and tax return data. We also undertake research to better understand issues possibly impacting on your compliance, see chapter 7. 8 LARGE BUSINESS AND TAX COMPLIANCE

12 02 Our approach CHECKLIST OF WHAT WILL ATTRACT OUR ATTENTION Financial or tax performance that varies substantially from industry patterns Significant variations in the amounts or patterns of tax payments compared to past performance, relevant economic indicators and industry trends Unexplained variation between economic performance, productivity and tax performance Unexplained losses, low effective tax rates, and cases where a business or entity consistently pays relatively little or no tax History of aggressive tax planning by the corporation, group, board members, key executives or advisers Perceived weaknesses in the compliance structures, processes and approaches Tax outcomes that are inconsistent with the policy intent of the tax law Promotion of tax exploitation schemes Implementation of a transaction in a way that is materially different to that described in a product ruling relevant to the transaction Businesses experiencing rapid growth, restructure, mergers or de-mergers, deploying new accounting software or undergoing changes of accounting staff Businesses employing strategies that may lead to an erosion of the corporate tax base BISEP MODEL FIGURE 5: BISEP model IF YOU ARE NOT SATISFIED If you are concerned about how a compliance activity is proceeding, we encourage you to discuss the issues with your nominated ATO case officer. If discussion with the case officer does not resolve the issue, we encourage you to refer the issue to the senior officer whose name you will have been given at the start of the compliance activity. The senior officer will review the issue, including the relevance and scope of any information requests, and will discuss it with you and your case officer. The senior officer will work with you and your case officer on a process for addressing your concerns. LARGE BUSINESS AND TAX COMPLIANCE 9

13 03 GOOD TAX GOVERNANCE SOUND TAX RISK MANAGEMENT PROCESSES Managing your tax risk well is core to good corporate governance, particularly if you are operating in international markets. We work with you to build an environment that fosters good corporate governance and supports your tax risk management. We are committed to engaging with you and the agencies that develop corporate governance codes to assist you to incorporate tax compliance into your risk management processes, both strategically and operationally. We are committed to developing a better relationship with you in the interests of an efficient, internationally competitive tax system. In Australia, corporate reporting and disclosure laws make it important for boards to be appropriately informed about material tax risks. By being transparent, accountable and engaging constructively with us, you demonstrate good corporate citizenship and lower your tax risk profile, with the benefits to reputation that follow. Our experience with corporate governance and relationship based products such as our annual compliance arrangements shows that better relationships with large business lead to fewer audit interventions and improved certainty for both of us. At an international level, open and transparent relationships are increasingly being seen as key to promoting better governance practices that enhance relationships and are of mutual benefit to both the authority and large business. The Organisation for Economic Cooperation and Development (OECD) Multinational Enterprises Guidelines recognise tax risk management as a key component of good corporate governance. Because of the additional tax compliance implications of international transactions and arrangements, businesses operating in Australia with international dealings must be aware of and meet Australian corporate governance requirements, especially record keeping obligations. For more information on international risk, go to ato.gov.au/complianceinfocus WHAT DOES GOOD CORPORATE GOVERNANCE LOOK LIKE? You should have appropriate corporate governance arrangements in place to manage your tax responsibilities Key people within your business should ensure that governance arrangements are being met by having appropriate oversight, sound systems, clear accountabilities, strong controls, ethical behaviours and highly skilled people supported by robust processes and procedures. Your business should have the capacity to identify, assess and mitigate tax risks. A robust approach to tax risk management will function on two levels: how you manage your tax risk on a strategic level what controls you have in place to meet your operational obligations. STRATEGIC LEVEL Managing tax risk can be considered in terms of what relationship you want to have with us. Your approach to tax risk will determine the nature of your interactions with us and whether we: work with you on a prospective, cooperative basis to identify tax risks and agree on mitigation strategies, or proceed via the use of risk reviews and audits. Ideally you should have robust board and corporate decisionmaking processes for major transactions and corporate strategies that incorporate appropriate coverage of tax matters. We expect that taxpayers with strong corporate governance and tax risk management have board members who are properly supported by underlying processes that inform decision-making and play a crucial role in establishing and maintaining strong corporate governance structures. Board members should be informed of and consider material tax issues associated with proposed major transactions, arrangements and strategies and understand the effects on their business. The board should determine what aspects of tax risk are within its control and what level of risk is acceptable, while pursuing the objectives of having: controlled and transparent management of tax activities on a day-to-day basis decision-making that is able to be understood by non-tax personnel an enhanced ability to anticipate issues (such as changes in law and relevant court decisions). OPERATIONAL LEVEL Effective accounting and control mechanisms help you to meet your day-to-day compliance and reporting obligations. They reduce your on-going compliance costs and enable robust and transparent tax-management systems and controls. RECORD KEEPING Good record keeping is part of robust corporate governance. Under tax law, you must keep records to support your liabilities and claims. These records include documents evidencing an intention, election, choice, estimate, determination or calculation. Documents include both paper and electronic communications including s. 10 LARGE BUSINESS AND TAX COMPLIANCE

14 03 Good tax governance For multinational companies or those operating cross jurisdictionally, you are obliged to follow the requirements set out by Australian tax law. For more information, go to ato.gov.au/recordkeeping HOW WE SUPPORT TAX-RISK MANAGEMENT We provide a number of services to help you accurately assess and manage tax risks, including: annual compliance arrangements (ACAs) which help you achieve practical certainty and reduce compliance costs advance pricing arrangements (APAs), like ACAs, which provide practical certainty and reduced compliance costs for international dealings pre-lodgment compliance reviews (PCRs) which assist our largest taxpayers to identify and manage risk soon after major transactions occur Compliance in focus, our publication outlining the tax risks attracting our attention our rulings program, where you can seek our view on a transaction, issue or product the GST governance and risk management guide assurance-based risk and governance workshops. For more information, go to ato.gov.au/gstgovernanceriskguide More information on corporate governance guidelines can be found on the OECD website at oecd.org TAX-RISK MANAGEMENT AND GOVERNANCE CHECKLISTS At the strategic level, your tax risk management frameworks and governance processes should ensure: you have a documented tax risk management policy that is adhered to by all stakeholders you are aware of your risk-differentiation framework (RDF) categorisation, and the relevant matters we considered in establishing your categorisation you understand the consequences of your risk categorisation your business is aware of and, where appropriate, effectively uses the services and compliance products we offer to reduce your tax risk and compliance costs your process for implementing your tax risk framework is appropriately presented to your board you understand the risk stance of your tax adviser and are comfortable that it aligns with your business you are satisfied with the way your business manages any major disagreements with us any potential tax liabilities are adequately provided for the amounts of tax you are paying are in line with your business results if your business results do not align with your tax payments, that there is a reasonable explanation you do not have any transactions or arrangements that may be viewed as not making commercial sense or be perceived as seeking a tax benefit if your business is consistently reporting losses, that these are real economic losses and can be satisfactorily explained in terms of overall performance. At an operational level, your tax risk management frameworks and governance processes should ensure: the roles and responsibilities associated with overall tax compliance are clearly defined your tax function has adequate resources to manage tax risks effectively and provide reasonable assistance when dealing with us the tax information used for your internal accounting and provided to us is accurate and reliable you are confident that your records and control systems enable you to properly assess and meet your tax obligations changes relating to tax and super laws or their interpretation (for example, due to court decisions) are appropriately implemented processes are in place to identify, assess and escalate relevant matters tax risks are monitored within your business, and the board and senior management are regularly updated your information systems provide ready access to important information and that there are no gaps in corporate memory your reporting deadlines are met. For more information, see chapter 7, or go to ato.gov.au/rdf LARGE BUSINESS AND TAX COMPLIANCE 11

15 04 WORKING TOGETHER WITH LARGE BUSINESS SERVICES WE PROVIDE AND HOW WE WORK TOGETHER We are committed to the continuous improvement of our service and relationship with you. We provide a number of ways for you to obtain information and communicate and transact with us. At a strategic level we facilitate: the Large Business Liaison Group (LBLG) input to the National Tax Liaison Group (NTLG) stakeholder relationship management arrangements with industry associations and taxpayer representatives, technical and special purpose consultations industry-specific forums liaison with industry associations. At an operational level we provide: general services, such as information on our website client services, giving information directly to you through our phone service, subscriptions and the Business Portal specialised services, tailored to the circumstances of key clients in large business. WORKING TOGETHER ON THE SYSTEM We regularly consult with large business key industry bodies and professional associations to improve our understanding of specific business environments and your perspectives on key tax issues. These forums focus on partnering and co-designing compliance practices and approaches. This enables us to help you comply with a changing legislative environment and guides our approaches to reduce compliance costs and improve the administration of the tax system. Large Business Liaison Group The Large Business Liaison Group (LBLG) is a stewardship committee representing our key relationships with the large market. It focuses on significant matters where the outcomes are considered to be in the national interest. The LBLG discusses the strategic direction of the tax and super systems. Membership of the LBLG comprises senior ATO executive officers, industry representatives, tax managers from some of the top 100 corporates and a representative from Treasury. National Tax Liaison Group The National Tax Liaison Group (NTLG), a stewardship committee, focuses on significant matters in the national interest. It supports key relationships reflecting the broader community. Like the LBLG, the NTLG provides an opportunity to discuss the strategic direction of the tax system. It also specifically provides opportunities for improvements to the administration of the tax and super systems. The role of the NTLG is to raise and address: concerns about aspects of the administration of the tax and superannuation systems which are not functioning properly technical issues associated with policy implementation and application. Membership comprises senior ATO executive officers, professional associations and a representative from Treasury. For more information, including access to minutes, go to ato.gov.au/ntlg HOW WE COMMUNICATE WITH YOU We want to provide you with the best possible service and relationship management. To do this we work closely with you, your tax advisers and industry groups to improve tax administration. When we need to talk to you we will contact your public officer or another authorised contact. Our information services aim to give you timely information and advice to help you understand your rights, entitlements and obligations and give you greater clarity on the application of the tax law and on our strategies and approaches. We keep you informed through the services listed below. For more information, including access to minutes, go to ato.gov.au/lblg 12 LARGE BUSINESS AND TAX COMPLIANCE

16 04 Working together with large business GENERAL SERVICES Businesses homepage On our Businesses homepage you will find a range of up-todate information on new law, announced changes to the law and administrative changes. You can also access our legal database. Large business bulletin The bulletin is a by-subscription quarterly online publication aimed at large business. It contains up-to-date information on income tax, GST, excise and super matters with links to recent rulings, speeches and media releases. To view or subscribe, go to ato.gov.au/lbbsubscribe Go to ato.gov.au/business International tax essentials for businesses This homepage offers detailed information on international tax issues affecting large business. You will find details of new measures impacting your business such as the review of international tax agreements, transfer pricing and tax treatment of foreign income. Go to ato.gov.au/international Compliance in focus Our annual Compliance in focus publication outlines how we encourage compliance with Australia s tax and super laws and details our areas of particular focus across all taxpayer markets. Go to ato.gov.au/complianceinfocus CLIENT SERVICES To build and maintain strong relationships with large businesses we offer a range of services to help you understand and manage your tax rights and obligations. Large business phone service You can use this service for quick and easy access to officers experienced in dealing with large business account inquiries about debt and lodgment obligations. This covers both income tax and GST. Phone us on or fax your query to International callers can contact us by phoning between 8.00am and 5.00pm (EST or daylight-saving time) and asking for your call to be transferred to the appropriate area within the ATO. Alternatively, you can fax us on Other phone numbers may not work from some countries. Large business alert service The alert is a subscription-based service for communicating directly with you when important issues arise. To view or subscribe, go to ato.gov.au/lbasubscribe Business Portal The portal is a secure website for managing your business tax affairs, protected by the AUSkey pass system. You can use this to: prepare, lodge and revise activity statements view and arrange transfers to or refunds from income tax, excise, fringe benefits and some super accounts communicate with us using a variety of forms or via the portal mail function update contact and some registration details (for example, financial institution details, business and postal addresses and ATO contact details) lodge objections apply for private binding rulings. For more information on our online services, go to ato.gov.au/onlineservices Compliance teams Our compliance teams have responsibilities that include monitoring and reviewing economic and tax performance, lodgments, media alerts and significant events. During compliance activities such as risk reviews or audits we will give you contact information for your compliance team. LARGE BUSINESS AND TAX COMPLIANCE 13

17 04 Working together with large business SPECIALISED SERVICES We recognise the importance of the largest businesses in Australia. Given the size and nature of your business we have a range of specialised services tailored to the particular circumstances of key clients. Listed below are some examples of these services. Relationship managers We offer relationship managers to key large market taxpayers to help provide a more streamlined service and foster two-way communication. Large Service Team Large market taxpayers without a relationship manager can for assistance relating to online, transactional and administrative issues and information on your risk categorisation. Relationship management meetings We have a program of regular visits with our largest businesses. Senior tax officers will meet with you to discuss significant events that may have tax implications, revenue performance, risk, technical and service issues and the progress and conduct of any compliance activity. Senior executive relationship managers We have expanded the lead relationship manager service previously offered to selected large businesses. Senior executive relationship managers are offered as a contact point for over 100 key taxpayers categorised under our risk-differentiation framework. These officers work collaboratively with the large business to facilitate, coordinate and prioritise high level engagement across the ATO, resolve blockages and issues where other avenues have failed, and arrange access to decision makers for significant issues. YOUR FEEDBACK We encourage your feedback at any stage throughout our interactions. Talking to us early will help resolve issues and, if issues need to be escalated, you will have access to our decision makers. You have the Commissioner s guarantee that you can provide open and honest feedback, or raise concerns without it influencing our view or future interactions with us. Complaints If you are not satisfied, you can phone our complaints line on Alternatively, tax practitioners can phone Fast Key Code For more information on how to make a complaint, go to ato.gov.au/complaints Feedback questionnaires We send out a short questionnaire following the completion of a risk review, audit, private ruling, public ruling or objection, and analyse the responses to help us improve our processes. Professionalism survey We will be measuring the professionalism of our staff as part of our service commitments. A single perception and satisfaction survey of the community, including large businesses, will be used to collect your opinions. With your help we can measure our performance and focus on areas needing improvement. To view the results of the survey, go to ato.gov.au/professionalismsurvey 14 LARGE BUSINESS AND TAX COMPLIANCE

18 OBTAINING CERTAINTY 05 OUR LAW ADVICE SERVICES AND HOW TO USE THEM EFFECTIVELY We offer a range of advice services to help reduce uncertainty and clarify ambiguity about how the tax law works. If law is clear We have a duty to apply the law. If the law is clear but gives rise to unintended consequences, anomalies, or significant compliance costs inconsistent with the policy intent, we have a responsibility to advise the government usually through Treasury. We do this regardless of whether the existing law favours taxpayers or the revenue, giving the government the opportunity to consider legislative change. If law is open to interpretation If the words in the Act are open to interpretation in different ways, our approach is to adopt the interpretation that is consistent with the policy intent. If more than one of the available interpretations achieves the policy intent, we will generally favour the interpretation that reduces your compliance costs. New legislation We are responsible for ensuring that new legislation is implemented efficiently and effectively through consultation, collaboration and co-design with taxpayers, professional associations, representatives, industry bodies and Treasury. We work with all stakeholders to ensure that the law, administrative systems and information products are consistent with the policy intent and compliance costs are minimised. HOW WE PROVIDE ADVICE To give you certainty we offer a number of ways for you to seek advice on an issue. We encourage you to come to us early so that we can help you to meet your commercial timeframes, as shown in figure 6. Early discussions help clarify technical issues, identify the most appropriate advice product, clarify information requirements, case plan and manage expectations. For more information on who to contact, see Client services on page 13. Interpretive assistance Providing written advice on how the tax laws apply is a feature of our self assessment system and is central to our role. A ruling is our opinion on the tax interpretation of the law and is binding on us but not on the taxpayer. For class, product and private rulings, you will need to provide a full and true disclosure of all the material facts to allow us to form a view. If all material facts are not disclosed the ruling cannot be relied upon. We may engage in compliance activities to ensure the advice sought is implemented in materially the same manner as described in the request. For more information on the advice process, see Rulings process on page 40. For more information on the advice and information services we provide, go to ato.gov.au and search for Taxpayers Charter helping you to get things right. LARGE BUSINESS AND TAX COMPLIANCE 15

19 04 Obtaining certainty TYPES OF INFORMATION WE PROVIDE We provide two categories of information: published information about how the law generally applies information specifically for you. Our general information, such as our electronic and paper publications, provides information about how the tax law works. As this information is general in nature, it is unlikely to cover all possibilities. These include: public rulings class rulings product rulings. If general information does not fully cover your circumstances, or you are unsure how the law applies to you, another form of advice should be sought. You may also ask us to provide advice specifically for you. Different types of advice are available: private rulings administratively binding advice. Public rulings Public rulings provide our interpretation of the tax law on priority issues that need clarification. They can help you to understand the law better and, from our perspective, they play an important role in improving voluntary compliance in a self assessment environment. In terms of your business, they give you more certainty in making decisions. Rulings can only interpret existing law and are not designed to fill gaps or amend deficiencies in legislation. We identify the types of matters and priority topics suitable to be covered in our public rulings in consultation with your representative bodies. There are also two specialised types of public ruling: class rulings product rulings. Class rulings Class rulings enable us to provide legally binding advice in response to a request from a client seeking advice about the application of a tax law to a specific class of people about to enter a particular arrangement. The purpose of a class ruling is to provide certainty about the way the law applies to the arrangement and remove the need for each individual affected to seek a private ruling. Product rulings Product rulings enable us to rule publicly on the availability of claimed tax benefits from products. A product refers to an arrangement in which a number of taxpayers individually enter into essentially the same transactions with a common entity or group of entities. Product rulings give certainty about the tax consequences of entering into a particular arrangement provided the arrangement is carried out in accordance with details in the product ruling. We expect the highest levels of disclosure in rulings applications. We do not sanction or guarantee products as investments. We give no assurance that products are commercially viable, that charges are reasonable, appropriate or represent industry norms, or that projected returns will be achieved or are reasonably based. You and your financial advisers must form your own view about the commercial and financial viability of the product. Private rulings Private rulings allow you to self assess if the law or factual circumstances make you unsure of the correct tax treatment of a transaction. To reduce uncertainty you can apply for a private ruling you can ask to be assessed in relation to an existing or proposed transaction, including the application of a general anti-avoidance provision. We will work with draft material for prospective transactions however the draft documentation must be materially similar to the end product. We may also ask for more information and can make assumptions in some circumstances based on our understanding of the information you have provided. We must determine your tax position by the proper application of the tax law to the facts of your case. You may not need to seek a private ruling if there is an existing public ruling and there are no material differences between it and your particular circumstances. Private rulings can be useful in obtaining our views on uncertain legal positions. Under the law, you can object to a private ruling decision. If you object, we may ask you for further submissions to support your argument. 16 LARGE BUSINESS AND TAX COMPLIANCE

20 04 Obtaining certainty FIGURE 6: Ongoing dialogue PRE-LODGMENT DISCUSSION TO AGREE SCOPE AND TIMELINES CHOOSE ADVICE PRODUCT (based on commercial drivers, that is, timeframes, level of certainty required) INFORMATION PROVIDED BY TAXPAYER FACTS ANALYSED BY THE ATO AND APPLICATION OF THE LAW General anti-avoidance rule You may consider requesting a private ruling on the application of one of the general anti-avoidance rules (GAARs) to a specified scheme and any particular tax benefit in connection with or from that scheme. GAARs that may apply include Part IVA in the Income Tax Assessment Act 1936 (ITAA 1936) and section 165 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act). Private rulings on the application of a GAAR will need a thorough examination of the facts and purpose of each step in the overall scheme and this may delay the issuing of the ruling or result in a qualified ruling. To minimise delays, you may wish to consider asking us to consider the application of a GAAR about specific issues or concerns (that is specific tax, including indirect tax, benefits) rather than asking us to consider if a GAAR will apply to the scheme in general. RULING ISSUED DISCUSS WITH TAXPAYER DECLINED TO RULE RULING WITHDRAWN Resolving disputes The GAARs Panel helps us to administer these rules. The panel is comprised of a range of business professionals and senior ATO officers see General Anti-Avoidance Rules Panel on page 32. Priority ruling process We recognise that significant transactions can sometimes arise quickly and you may need an urgent ruling from us. Certain private and class rulings may qualify for inclusion in our priority ruling process. We use this process to manage tax risks associated with time sensitive, prospective transactions that: are of major commercial significance and require consideration at board level have a tax outcome that is a critical element of the transaction have complex law or facts that need to be analysed. For inclusion in our priority rulings process, the entity must: notify us as soon as practicable after the transaction is first seriously contemplated agree to provide an application incorporating a full brief with all relevant information all issues identified position for and against timeframes identified. Administratively binding advice Administratively binding advice is written advice that we give you in limited circumstances usually when the law does not allow us to give you a private ruling. For example advice about: the tax consequences to a company planning a takeover bid of another company (without the consent of the target company) a scheme proposed by a company that is not yet incorporated a scheme where private or public infrastructure matters are raised and there are no entities yet in existence that can request a private ruling. For further information, refer to PS LA 2002/13 Authorisation of written binding advice. For more information, go to: n ato.gov.au/publicrulingprocess n PS LA 2009/2 The priority ruling process. LARGE BUSINESS AND TAX COMPLIANCE 17

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