The tax measures announced in the 2012-2013 Federal budget demonstrate the Government’s significant revenue constraints and its unwillingness to concede reductions in the tax base.
The majority of the new tax measures announced are micro reforms focusing on personal, superannuation and small business tax measures.
Among the more significant corporate reforms, which have been previously proposed, the Government has:
The Government will not proceed with the 2010-11 Budget measure proposed to give a 50 per cent discount for interest income nor the standard deduction for work related expenses and the cost of managing tax affairs
which was due to commence on 1 July 2013.
As foreshadowed by the pre-Budget announcement, the Government will provide tax relief for companies by allowing them to carry-back tax losses made in the 2012-13 income year so they receive a refund against income tax previously paid.
A one year loss carry-back will apply for the 2012-13 income year, where tax losses made in that year can be carried back and offset against income tax paid in respect of the 2011-12 income year. For the 2013-14 and later income years, tax losses can be carried back and offset against income tax paid up to two years earlier. Companies will be able to carry back up to $1 million of tax losses each year. This will provide a cash benefit of up to $300,000 a year.
However, the measure will only be available to companies and entities that are taxed like companies so that individuals, trusts (unless taxed like companies) and partnerships (structures that are often used by small business) will not be able to take advantage of the measure. Further, it will only apply to the revenue losses of an eligible corporate entity, will be subject to integrity rules, and will be limited to a company’s franking account balance. Therefore, eligible entities may forfeit their entitlement to the measure to the extent that prior year profits are paid out as franked dividends.
The measure brings forward the Business Tax Working Group’s proposed start of 2013-14 by one year.
Company tax cut - not to proceed
The Government will not proceed with the measure to lower the company tax rate to 29%. This was due to commence from the 2013-14 income year (and from the 2012-13 income year for small businesses). The quid pro quo for this is said to be the introduction of the new carry-back loss rules. However, as mentioned above, the proposed loss carry-back measure (in its current form, and as proposed by the Business Tax Working Group) will be of no benefit for small business which are not treated as companies for tax purposes.
It was also said that the Government was unable to progress this measure through Parliament.
Debt Equity rules — treatment of Tier 2 capital instruments under the Basel III
The Government also announced that on commencement of the Basel III capital reforms on 1 January 2013, certain capital instruments issued by authorised deposit taking institutions (“ADIs”) can be treated as debt for income tax purposes. Under the Basel III capital reforms such instruments will have to be written off or converted into ordinary shares if the Australian Prudential Regulation Authority (“APRA”) decides that the ADI would otherwise become non viable. If the current tax law applied to the instruments, they would likely be treated as equity for income tax purposes, and their funding costs would not be tax deductible.
This change will apply to certain Tier 2 regulatory capital instruments issued by ADIs and certain other related entities regulated by APRA.
Changes to the general anti-avoidance rule (Part IVA)
The Government announced in the Budget that the proposed amendments to the income tax general anti avoidance rule (“Part IVA”) will have effect from 2 March 2012, something which was not apparent from their original announcement.
On 1 March 2012, the former Assistant Treasurer announced plans to amend Part IVA to ensure that it continues to be effective in countering tax avoidance schemes. This followed losses by the Commissioner of Taxation in two recent cases in the High Court of Australia, both involving clients that were being advised by the King & Wood Mallesons’ Australian tax litigation team.
The Government has still not released any further information on the proposed changes to Part IVA, which will have retrospective application from 2 March 2012. As King & Wood Mallesons observed in March, this means businesses must comply with tax laws, the policy of which is unknown and the provisions of which have yet to be written.
The budget paper claims that the amendments simply confirm the existing law; and so are not expected to have an impact on revenue.
The budget paper states that the amendment will clarify the circumstances in which a taxpayer obtained a “tax benefit” in connection with a scheme. It will also clarify that Part IVA is intended to apply to steps within what are otherwise broader commercial arrangements, which have been implemented in a particular way so as to avoid tax.
Bad debts – ensuring consistent treatment in related party financing
The Government also proposed a more consistent tax treatment for bad debts between related parties irrespective of whether they are members of a tax consolidated group. The measure will:
This measure appears to be a delayed reaction by the Government to overcome two Federal Court cases in which in-house financing companies were allowed to claim deductions for bad debts written off (see CoTv BHP Billiton Finance Ltd & Ors (2010) 182 FCR 526; FCT v Ashwick & Ors (2011) 192 FCR 325). The Courts found in both cases that s 25-35 of the Income Tax Assessment Act 1997 (Cth) operated to allow deductions to the in-house financiers for bad debts in respect of amounts the financiers had loaned to other entities within the same corporate group.
Limited recourse debt — amended definition
The Government will clarify that limited recourse debt includes arrangements where the creditor’s right to recover the debt is effectively limited to the financed asset or security provided. This measure will have effect from 7.30pm (AEST) on 8 May 2012.
The measure will ensure that tax deductions are not available for capital expenditure on assets that have been financed by limited recourse debt, to the extent that the taxpayer is not effectively at risk for the expenditure and does not make an economic loss. This measure supports the existing practice of the ATO of denying such capital expenditure (e.g. by reducing the cost base held in assets where the limited recourse feature is invoked under an instalment warrant arrangement). It may also be the case that the amended definition is intended to overturn the decision of the High Court in CoT v BHP Billiton (2011) 85 ALJR 638, where the Commissioner was prevented from clawing back certain capital allowances claimed because the Court considered that the arrangement used to finance the assets was not ‘limited recourse debt’.
Fringe Benefits Tax (“FBT”) — further reform of living away from home allowances and benefits
The Government will further reform the tax concession for LAFHA and benefits by better targeting it at people who are legitimately maintaining a second home in addition to their actual home for an initial period. This measure builds on the previously announced reforms by:
These further reforms are aimed at preventing employers from being able to give the tax concession to employees who are not maintaining a second home, or are maintaining two homes indefinitely.
This measure will not affect:
These proposed changes may impose a significant cost burden on both business owners and their employees. For instance, they would exclude Australian visitors on temporary visas (except those on fly-in fly-out arrangements), and may present greater cost burdens on Australian businesses trying to attract highly skilled overseas workers, as employers may no longer be able to use the LAFHA tax concessions as an attraction. Further, a one-year time limit may be restrictive, particularly for employers wishing to move their employees interstate or overseas on longer-term arrangements in order to maximise the benefit of the high cost of secondment.
The reforms will apply from 1 July 2012 for arrangements entered into after 7.30pm (AEST) on 8 May 2012, and from 1 July 2014 for arrangements entered into prior to that time.
FBT — reform of airline transport fringe benefits
The Government will update the method of determining the taxable value of airline transport fringe benefits from stand by value to market value. The stand-by value method was developed when stand by travel was a feature of commercial airline pricing and staff could be displaced from a flight up to the time of boarding. However, the concept of stand by travel is no longer considered by the Government to be commercially relevant as airlines now use discounted pricing to optimise passenger levels.
This measure will apply to benefits provided after 7.30pm (AEST) on 8 May 2012.
Taxation of financial arrangements — foreign currency regulations — amendments
The Government will make technical amendments to the foreign currency provisions, so that the previously announced compliance cost savings measures operate appropriately.
Tax Breaks for Green Buildings — closure
The Government will not proceed with the Tax Breaks for Green Buildings program. The Government stated that the program would have driven significantly higher cost abatement than that delivered by the carbon price.
Amendments to beneficial interests
The Government will make changes to provide greater consistency in the application of the scrip for scrip roll over and small business concessions to trusts, superannuation funds and life insurance companies. The measure ensures that the provisions concerning absolutely entitled beneficiaries, bankrupt individuals, security providers and companies in liquidation interact appropriately with the capital gains tax provisions and with the connected entity test in the small business entity provisions. These changes will apply at the option of taxpayers from the 2008-09 income year and automatically from Royal Assent.
Amendments to the revenue asset and trading stock roll-overs for interposing a company
The Government will broaden the revenue asset and trading stock roll overs that apply to the exchange of interests in a company or unit trust for shares in another company. These changes will apply from 7.30pm (AEST) on 8 May 2012.
This measure will ensure that these revenue asset and trading stock roll overs will be available for all interests that qualify for the general conditions of each of the roll overs, rather than only shares in consolidated groups. The measure also improves integrity by requiring that the replacement shares in the interposed company must maintain the character of the original revenue asset or trading stock asset that was exchanged.
Broadening the exemptions for certain compensation payments and insurance policies
The Government will extend the CGT exemptions for certain compensation payments and insurance policies, with effect from the 2005-06 income year. This measure is estimated to have an unquantifiable but small cost to revenue.
This measure will disregard the CGT consequences where a taxpayer receives compensation, damages or certain insurance proceeds indirectly through a trust. This will ensure that the taxpayer has the same CGT outcome as a taxpayer who receives such proceeds directly. It will also ensure that insurance policies owned by superannuation funds that were treated as being CGT exempt prior to the 2011-12 Budget changes to compensation payments and insurance policies continue to be CGT exempt.
Refinements to the income tax law in relation to deceased estates
The Government will make a series of minor amendments to the 2011 12 Budget measures to ensure the proper functioning of the CGT provisions relating to deceased estates, with effect from Royal Assent. In particular, these changes include reduced compliance costs involved with the integrity provisions by ensuring that the deceased’s tax return does not need to be amended as the taxing point will be recognised by the entity transferring the asset. The provisions will also broaden the scope of the integrity provisions to also apply to assets passing via survivorship.
Strengthening certain integrity provisions in the scrip for scrip roll over
The Government will amend the integrity provisions of the CGT scrip for scrip roll-over to remove perceived tax minimisation opportunities. These changes will have effect from 7.30pm (AEST) on 8 May 2012. The scrip for scrip roll-over provides CGT relief for shareholders when they exchange their shares in a company takeover and a capital gain would otherwise arise. It also provides relief for unitholders of trusts involved in takeovers. No revenue impact is identified.
The measure will ensure that taxpayers cannot get around the scrip for scrip roll-over’s integrity provisions by holding interests to acquire ownership rights, such as convertible preference shares, rather than the underlying shares; and defer indefinitely the CGT liability that would have otherwise arisen under the integrity provisions for the on sale of the target entity by the acquiring entity.
The measure will also broaden the scope of the rules that apply to intra group debt to cover debts owed to group entities other than the head entity and remove the CGT exemption for the repayment of such debts.
Capital gains tax and loss relief to facilitate superannuation reforms
The Government will amend the law to ensure that income tax considerations do not prevent mergers of superannuation funds or transfers of existing default members’ balances and relevant assets in the transition to Stronger Super and MySuper. From 1 June 2012 to 1 July 2017, optional loss relief will be available for mergers of complying superannuation funds on the same terms and conditions as the former temporary loss relief that applied from 24 December 2008 to 30 September 2011, with some exceptions, including an optional roll-over for capital gains and appropriate integrity provisions.
From 1 July 2013 to 1 July 2017, an optional roll-over and loss relief will be made available for capital gains and capital losses on mandatory transfers of default members’ balances and relevant assets to a MySuper product in another complying superannuation fund.
Tax information exchange agreements (“TIEAs”), double tax agreements (“DTA”) and exchange of information agreements (“EOI”)
The Government noted the following:
Increase in managed investment trust (“MIT”) final withholding tax rate
The Government will increase the MIT final withholding tax rate from 7.5 per cent to 15 per cent, with effect from 1 July 2012.
It is not clear whether the increased rate will apply to MIT structures established after that date, or simply to fund payments made after 1 July 2012. This measure was unexpected and will create some uncertainty for foreign investors, particularly for those investors who have already invested into Australia on the expectation that the reduced rate of 7.5 per cent would apply over the term of their investment.
Investment manager regime (“IMR”) prospective arrangements
The Government has reconfirmed its commitment to the introduction of a full IMR, which should further enhance Australia as a financial services centre in the Asia Pacific region and assist to make Australia more internationally competitive with other financial services hubs (such as Singapore and the UK).
The full IMR will extend the previously announced conduit income measure (such as the “interim IMR” and “FIN 48 exemption”) to exempt foreign managed funds from tax on gains from the disposal of certain non Australian assets and certain non portfolio conduit income. These funds (and their non resident investors) will also be exempt from Australian tax on Australian sourced income and gains from certain portfolio financial arrangements. This measure will have effect from 1 July 2011.
Deferral of higher concessional contributions cap
The start date of the 2010-11 Budget measure which sought to increase the concessional contribution caps for individuals aged 50 and over with superannuation balances below $500,000 will be deferred by two years, from 1 July 2012 to 1 July 2014. Under the higher concessional contributions cap measure, those individuals will be able to make up to $25,000 more in concessional contributions than allowed under the general concessional contributions cap.
The two year deferral means that for 2012-13 and 2013-14, affected individuals will only be able to make concessional contributions of up to $25,000 per year as permitted under the general concessional contributions cap. In 2014-15, the general cap is likely to increase to $30,000 through indexation, and the higher cap would then commence at $55,000.
Reduction of higher tax concession for contributions of very high income earners
The Government will reduce the tax concession that high income earners receive on their concessional contributions.
Currently, the 15 per cent flat tax on concessional contributions is considered to provide high income earners with a significantly larger tax concession than those on lower marginal tax rates. From 1 July 2012, individuals with income greater than $300,000 will have the tax concession on their contributions reduced from 30 per cent to 15 per cent (excluding the Medicare levy).
The definition of ‘income’ for the purpose of this measure includes concessional superannuation contributions as well as taxable income, adjusted fringe benefits, total net investment loss, target foreign income and tax free government pensions and benefits, but does not include child support. If an individual’s income excluding their concessional contributions is less than the $300,000 threshold, but the inclusion of their concessional contributions pushes them over the threshold, the reduced tax concession will only apply to the part of the contributions that is in excess of the threshold. ‘Concessional contributions’ for the purpose of the measure includes notional employer contributions for members of defined benefit funds.
The reduced tax concession will not apply to concessional contributions which exceed the concessional contributions cap and are therefore subject to ‘excess contributions tax’. These contributions are effectively taxed at the top marginal tax rate and therefore do not receive a tax concession.
This reform will only reduce the tax concessions which high income earners receive on their contributions into superannuation. The 15% flat tax on earnings within superannuation and tax exemption from assets supporting pension payments will not be affected by this reform.
Treasury will consult with the superannuation industry and other relevant stakeholders on further design and implementation details.
The devil will be in the detail. Will this be surcharge revisited? We doubt it. The surcharge collapsed under its own weight for the industry and the ATO driven by the political imperative to call it a “surcharge”, not a tax, and to impose the tax on trustees, not fund members.
This political imperative does not seem to be present this time around; probably driven by the higher target for income earners at $300,000.
Common sense would seem to suggest that this tax will need to be levied at the individual tax payer level. Perhaps the excess contributions tax regime sets a general precedent for this approach.
Employment termination payment tax offset
The Government will make changes to the employment termination payment (“ETP”) tax offset that can currently be used to reduce tax payable on payments included in remuneration packages such as ‘golden handshakes’. The Government states that this primarily benefits high income earners who are more likely to receive such payments and receive much larger payments when they do. To address this, the Government will limit the availability of the ETP offset.
From 1 July 2012, only that part of an affected ETP, such as a golden handshake, that takes a person’s total annual taxable income (including the ETP) to no more than $180,000 will receive the ETP tax offset. Amounts above this whole of income cap will be taxed at marginal rates. The whole of income cap will complement the existing ETP cap ($175,000 in 2012 13, indexed) which ensures that the tax offset only applies to amounts up to the ETP cap. The ETP tax offset ensures that ETPs up to the ETP cap are taxed at a maximum tax rate of 15 per cent for those over preservation age and 30 per cent for those under preservation age.
Existing arrangements will be retained for certain ETPs relating to genuine redundancy (including to those aged 65 and over), invalidity, compensation due to an employment related dispute and death.
Changes to the net medical expenses tax offset and dependency offsets
The Government will introduce a means test for the net medical expenses tax offset (NMETO) from 1 July 2012. For people with adjusted taxable income above the Medicare levy surcharge thresholds ($84,000 for singles and $168,000 for couples or families in 2012-13), the threshold above which a taxpayer may claim NMETO will be increased to $5,000 (indexed annually thereafter) and the rate of reimbursement will be reduced to 10 per cent for eligible out of pocket expenses incurred.
From 1 July 2012, it will also consolidate eight dependency tax offsets into a single, streamlined and non refundable offset that is only available to taxpayers who maintain a dependant who is genuinely unable to work due to carer obligation or disability.
50 per cent tax discount for interest income and standard deduction
The Government will not proceed with the 2010-11 Budget measure proposed to give a 50 per cent discount for interest income, nor the standard deduction for work related expenses and the cost of managing tax affairs which was due to commence on 1 July 2013.
Changes to tax rates for non-residents
The Government will adjust the personal income tax rates and thresholds that apply to non residents’ Australian income. From 1 July 2012, the first two marginal tax rate thresholds will be merged into a single threshold. The marginal rate for this threshold will align with the second marginal tax rate for residents (32.5 per cent) and will apply to all taxable income below $80,000. From 1 July 2015, the same marginal rate will again rise from 32.5 per cent to 33 per cent.
Removal of the CGT discount for non residents
The Government will remove the 50 per cent CGT discount for non residents on capital gains accrued after 7.30 pm (AEST) on 8 May 2012. The CGT discount will remain available for capital gains accrued prior to this time where non residents choose to obtain a market valuation of assets as at 8 May 2012. This measure would affect capital gains relating to taxable Australian property (e.g. capital gains from Australian real estate or interests in Australian land rich entities) which are realised by non-residents who would otherwise be eligible for the CGT discount (e.g. foreign individuals).
Families receiving the Family Tax Benefit Part A and certain other individuals will be eligible for an automatic and upfront Schoolkids Bonus of $410 for each child in primary school and $820 for each child in high school. It will apply from 1 January 2013. The current Education Tax Refund will be paid out in full to all eligible families in June 2012.
Flood levy — further exemptions
The Government will extend the exemptions for the temporary flood and cyclone reconstruction levy (“the temporary flood levy”) to include individuals who were eligible for an Australian Government Disaster Recovery Payment in 2010-11 even if they did not apply for and receive the payment, as required under the existing exemptions.
The Government will also extend the exemptions from the temporary flood levy to include those people who have been affected by a natural disaster in 2011-12.
Other personal tax changes
Other personal tax changes include phasing out the mature age worker tax offset, varying the Medicare levy low income thresholds, varying individuals’ entitlement to the low income tax offset, merging the pensioner tax offset with the senior Australians tax offset and variations to Family Tax Benefit Part A.
Government response to Board of Taxation report: GST cross border transactions
The Government will amend the 2010 11Budget measure implementing the recommendations of the Board of Taxation from its Review of the application of GST to cross border transactions.
The key points to note are as follows:
GST free health supplies
The Government will further amend its 2011 12 Budget measure to ensure that a health supply by a health care provider paid for by a statutory compensation scheme operator is GST free if the underlying supply from the health care provider to the individual is also GST free.
GST free nicotine replacement therapy
The Government has broadened the range of nicotine replacement therapies that are granted GST free status through a Ministerial Determination, with effect from 31 December 2011. This measure ensures that all types of nicotine replacement therapies approved for sale in Australia (e.g. whether sold in pharmacy or non-pharmacy settings) continue to be GST free to consumers.
Limiting the Commissioner of Taxation's ability to backdate GST registrations
As part of the introduction of self-assessment for indirect taxes, the Government has amended the GST law to limit the Commissioner of Taxation's ability to backdate a taxpayer's GST registration to four years, with effect from 1 July 2012. The four year period is consistent with other time periods in the GST administrative regime.
Reduced input tax credits for credit unions
The Government will amend the GST law to restore access to a reduced input tax credit (“RITC”) for credit unions who rebrand as ‘banks’, with effect from 1 July 2011. This measure will reinstate the existing concession by allowing a RITC for acquisitions from an entity wholly owned by credit unions or rebranded credit unions by a credit union or rebranded credit union.
The measure will apply to entities who were approved credit unions by APRA as at 1 July 2011 and subsequently change their branding to include the title ‘bank’, but otherwise do not change their corporate structure.
Sale of a corporation's property by a mortgagee or chargee
The Government will revise its 2011 12 Budget measure to amend the GST law in relation to the mortgage lending sector to clarify its operation and reduce compliance costs.
This measure will ensure that the amendments to the GST law now apply:
Treatment of appropriations
The Government will extend the Mid Year Economic and Fiscal Outlook 2011-12 measure to clarify the GST treatment of payments under an appropriation, with effect from 1 July 2012. This measure will provide a regulation making power in the GST law to prescribe that certain payments between government related entities are not subject to GST.
Restore the Commissioner’s ability to delay paying a refund
The Government will restore the Commissioner of Taxation’s previous administrative practice of retaining certain refunds for verification (e.g. check the validity of a refund claim) prior to payment, with effect from the date of Royal Assent of the enabling legislation.
The Government will provide $76.8 million over three years to the Australian Taxation Office (“ATO”) and other Project Wickenby agencies to continue the Government’s pursuit of tax evasion, avoidance and related crimes. The Government expects the Project Wickenby taskforce agencies to complete existing project work and transition the work to their standard activity by 30 June 2015.
Taxation agent services regime — exemption for taxation advice in the context of financial advice
The Government has extended the financial advisers exemption from compliance with the Tax Agent Services Act 2009 up until and including 30 June 2013. The extension will allow for the details of the regulatory model to be settled and help resolve implementation issues associated with bringing financial planners under the scope of the Tax Agent Services regime. The new regulatory model will focus on the principles of consumer protection and delivery of quality tax advice by financial advisers.
GST — compliance program — two year extension
The Government will provide $195.3 million to the ATO in 2014-15 and 2015-16 to continue a range of activities that promote voluntary GST compliance.
Extending the start date for better targeting of not for profit tax concessions
The Government will extend the start date for the 2011-12 Budget measure Not for profit sector reforms — better targeting of not for profit tax concessions from 1 July 2011 to 1 July 2012 (which is intended to ensure that the concessions are utilised to directly further the purposes for which they were provided).
The extension of the start date will provide additional time for consultation and will reduce the uncertainty for those in the not for profit sector who have commenced commercial activities since the 2011-12 Budget and may be affected by the measure.
The extended start date of 1 July 2012 will only apply to new unrelated commercial activities that commenced after 7.30 pm (AEST) on 10 May 2011. Existing unrelated commercial activities that commenced prior to that date will continue to be covered by transitional arrangements as announced in the 2011-12 Budget.
The 2012-13 Budget includes measures that invest in various infrastructure projects, in order to expand capacity and boost productivity.
Key measures in this Budget include $3.6 billion to duplicate the Pacific Highway, additional funding for the Roads to Recovery and Black Spots programs, a commitment to develop the Moorebank Intermodal Terminal and $232.1 million towards the Torrens and Goodwood rail project in Adelaide.
The Budget papers can be found here.
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