EY’s Global Tax Alert provides details on Australia’s new Diverted Profits Tax (DPT), effective in 2018 for calendar year taxpayers.
- Penalty up to 40% can be assessed
- Interaction with transfer pricing documentation and country-by-country (CbC) risk assessment
- Diverted profits taxed at less than 24% are vulnerable
- Proactive review of one’s documentation and risk assessment is recommended
Australia has patterned their DPT after the UK implemented a similar scheme, although posing some different characteristics.
As countries are reaching out to tax profits that are subject to a lower rate of tax elsewhere, this is providing a license to tax that cannot be ignored by multinationals with Australian operations.
The drive for additional transparency, among efforts by countries to implement anti-avoidance rules that trump tax treaties, continues with the latest round of BEPS updates, as EY’s Global Tax Alert provides added insight:
- Australian Tax Office (ATO) release of 4 tax alerts for issues of concern, a Diverted Profits Tax (DPT) is to be implemented, hybrid mismatch arrangements will be addressed in legislation, and the effective date for the new/revised OECD’s arms-length principle standards will move forward to 1 July, 2016.
- Ecuador: the most recently version, as of 1/1 of a taxpayer’s year, of the OECD’s Guidelines will be used as transfer pricing reference absent domestic rules.
- Hungary: A “modified nexus” IP approach will come into force.
- Netherlands: The innovation box rules will be amended to comply with OECD’s Action 5 guidelines.
- New Zealand: Domestic anti-avoidance rules will trump double treaty arrangements.
- Taiwan: CFC rules will be promulgated.
- Turkey: An “electronic place of business” draft legislation would empower taxation.
- Ukraine: A working group is forming anti-BEPS measures for consideration.
- US: Treasury is trying to extricate itself from its 1-year lag in obligatory country-by-country (CbC) reporting, although global acceptance is not expected.
The impact of BEPS is still accelerating, although the efforts by countries to avoid treaty provisions will provoke additional disputes and double taxation. Accordingly, the veil of anti-BEPS legislative efforts overshadows mutual transparency and collecting a fair share of tax while avoiding double taxation. Thus, all multinationals should be extra vigilant in the new era of international tax for additional documentation and support for significant transactions with low-tax countries.
The Australian Tax Office (ATO) has recently released a consultation paper re: implementation of a Diverted Profits Tax (DPT); comments are due by 17 June 2016. Although Australia has taken a long look at the DPT in concert with UK’s quickly enacted provisions, it took a breather while the OECD urged restraint on a far-reaching “tax” that may go beyond the intent of the OECD’s Guidelines. A link to the paper is provided for reference:
The focus of the paper is summarized in the first sentence: “The Government is strongly committed to ensuring that multinationals pay their fair share of tax in Australia.”
Highlights of the proposal:
- 40% penalty tax (non-deductible) rate, not offset by another jurisdiction’s tax (30% tax rate if an amended tax return is filed)
- Subjective determination (i.e. reasonable to conclude)
- Will not operate on a self-assessment basis
- Pay first, discuss later philosophy, copying UK’s direction (12-month review period and a right to appeal)
- Effective for years commencing on or after 1 July, 2017
- Flow chart appendix
- Efective for transactions that have an effective tax mismatch test (objective test) and insufficient economic substance (subjective test)
- Draft guidance will be developed in consultation with stakeholders.
All interested parties should review this consultation paper, and provide comments to the ATO for potential changes. It is interesting to see that transactions failing the effective mismatch test will be left exclusively with subjective determinations for possible assessments by the ATO without the benefit of dual transparency. Additionally, the philosophy of assess now and discuss later will not be a mechanism to effectively provide more trust by taxpayers as UK, Australia and other jurisdictions are creating unilateral laws to capture taxes payable on income in other jurisdictions, potentially without the right to access treaties, claim an offset in the other jurisdictions and have access to the full process of appeals prior to payment. As a result, the incidence of double taxation will increase.
It is hopeful the ATO will consider the comments received, and include changes to the current proposal to enhance transparency and mutuality by all parties.
The Senate Economics References Committee has published its interim report entitled “Corporate tax avoidance.” Part I, “You cannot tax what you cannot see” provides an excellent frame of reference for the discussions therein.
It is worthwhile noting that there is a section “Government Senators’ Dissenting Report” expressing concerns about some recommendations therein; this should be a additional warning sign of the recommendations put forth. Conversely, there are “Additional Comments from the Australian Greens” fully supporting the report in its entirety.
The final report is due in November 2015, although this interim release provides an indication of the thought trends currently in process by the Australian Tax Office (AT0). A link to the report is provided for reference:
- 17 recommendations provided addressing (1) evidence of, and multilateral efforts to combat, tax avoidance and aggressive minimization, (2) multilateral actions to protect Australia’s revenue base, and (3) capacity of Australian government agencies to collect corporate taxes.
- Australian government to work with other countries having significant marketing hubs to improve the transparency of information
- Australian government continues to take the load re: OECD BEPS initiatives; international collaboration should not prevent the Australian Government from taking unilateral action
- Mandatory tax reporting (transparency) code
- Existing transparency laws to be identical for private and public companies
- Public register of tax avoidance settlements reached with the ATO
- Public excerpts from the Country-by-Country OECD reports, based on the EU’s standards
- Annual public report on aggressive tax minimization and avoidance activities
- Section 3.95 discusses a novel concept: “Effective tax borne” effective tax rate formula, a metric that seeks to reflect all of the channel profit derived from business activities involving Australia and the Australian and global tax paid on that channel profit. Appendix 3 provides additional rules for application of this formula, noting that there has not yet been a consultation with taxpayers or other stakeholders. The metric envisions that the entire supply chain profit is a profit of the economic group arising from Australian business activities (i.e. intercompany purchases of goods and services from offshore related parties). Numerator is either the Australian tax paid on business activities by the economic group, or the global tax paid by such group. Denominator is the total economic profit from business activities which are linked to Australia. Withholding taxes of economic group profit are includable, whereas royalties and excises are not. Numerous rules apply for intercompany adjustments.
Australia is still recognized as a leader in the pursuit of the BEPS objectives, using transparency as a weapon to fight ensuing battles.
This report not only extends the strong cry for public disclosure of tax information, it suggests a new concept to examine the effective tax rate of jurisdictions having activities with an Australian related party. However, it is hopeful the envisaged complexity, cost/benefit and technical nuances of the “effective tax borne” concept are presented to stakeholders with enough time to review, plan and adjust/eliminate the final recommendation accordingly.
As Australia leads, many others follow. This report is required reading for all interested parties, as the ideas presented have a high probability of appearing in other jurisdictions in a similar form and formulating the same intent for transparency.
The Australian Tax Office (ATO) has issued a very interesting Practice Statement Law Administration. It is an informal policy document for which interested parties should submit comments by 25 September. The Statement is a lengthy document, citing case law, that is very worthwhile reading, as Australia continues its proactive efforts driving change in the international tax arena.
Although informal, taxpayers can rely on such guidance for protection from interest and penalties. A copy of the Statement is provided for reference:
- A general anti-avoidance rule (GAAR) cannot be applied before a determination by the Tax Counsel Network (TCN).
- A GAAR decision is generally referred to a GAAR Panel (an independent advisory body) before a final decision is made.
- The taxpayer may be invited to attend a Panel meeting to assist the deliberative process.
- Concepts of a tax scheme and a tax benefit are discussed. A tax benefit inclusive in Part IVA, the GAAR provision relates to: an amount not included in income, an allowable deduction, a capital loss, a tax loss carry back, a foreign income tax offset or withholding tax.
- An alternative hypothesis” or “alternative postulate” identification is discussed; what would have happened or might reasonably be expected to have happened if the particular scheme had not been entered into or carried out.
- It is for the court to determine objectively what alternative would have occurred if the scheme had not been carried out.
- Arguably, there is no longer a test of reasonable exception, based on Parliament’s intention in enacting the Amendments.
- Warning signs that GAAR may apply (which ATO must consider) are established:
- Arrangement is out of step ordinarily used to achieve the commercial objective,
- Arrangement seems more complex than necessary,
- Tax result does not conform to the commercial or economic result,
- Arrangement is low risk where significant risks would normally apply,
- Parties are operating in a non-arm’s length manner, or
- Gap between substance and legal form.
- Penalties are applicable.
- Division 165 (a GST GAAR rule) is discussed, including permanent and timing differences.
- A “dominant purpose” test is applicable for the GAAR and the GST provisions, with different factors includable in each.
The above provisions attempt to conceptualize objective factors for an inherently subjective GAAR determination. As additional GAAR’s are introduced around the world, each applying a different level of subjectivity, the Statement is helpful in understanding the rationale and intent of the ATO.
Tax planning post-BEPS will require additional GAAR documentation for significant transactions, thereby requiring tax to be involved early in the discussions to understand the business intent and alternatives considered.
The Australian Treasury announced its draft law encompassing country-by-country reporting (CBCR) and transfer pricing documentation.
EY’s tax publication provides relevant details in the referenced Global Tax Alert:
- Conforms to OECD’s recommended 3-tier transfer pricing approach, CBCR, master file and local file. The master file and local file will need to provided, whereas the CBCR may not be necessary if the group’s parent entity jurisdiction has an information sharing agreement.
- It is expected the Australian Taxation Office (ATO) will release additional guidance for the CBCR, hopefully by year-end 2015.
- Increases penalties for tax avoidance and transfer pricing where there is not a reasonably arguable position by the taxpayer.
Australia has been a leader in following the BEPS Actions and putting such intent into their domestic legislation. As Australia continues to take this lead position, it is expected many other countries will follow similarly. All multinationals should continue to monitor these developments, while accelerating planning and execution for the new CBCR and transfer pricing documentation regime.