Multinational Tax Integrity Package – amending Australia’s interest limitation (thin capitalisation) rules
The Government announced that it will amend the thin capitalisation rules to address risks to the corporate tax base arising from the use of excessive debt deductions. This measure will apply to income years commencing on or after 1 July 2023.
The current thin capitalisation regime under Division 820 of the Income Tax Assessment Act 1997 limits debt deductions up to the maximum of three different tests:
- a safe harbour (debt to asset ratio) test (SHT);
- an arm’s length debt test (ALDT); and
- a worldwide gearing (debt to equity ratio) test (WGT).
The Government will replace the SHT and WGT with earnings-based tests that will limit debt deductions in line with an entity’s profits. This measure includes changes to:
- replace the existing SHT with an earningsbased test. This will limit an entity’s debt related deductions to 30% of profits using earnings before interest, taxes, depreciation and amortisation (EBITDA) as the measure of profit;
- enable debt deductions denied under the entity-level EBITDA test (interest expenses that exceed the 30% EDITDA ratio) to be carried forward and claimed in a subsequent income year (for up to 15 years);
- replace the WGT with a new earnings-based group ratio that will allow an entity in a group to claim debt-related deductions up to the level of the worldwide group’s net interest expense as a share of earnings (which may exceed the 30% EBITDA ratio); and
- retain the ALDT as a substitute test that will apply only to an entity’s external (third party) debt and thereby disallowing deductions for related party debt under this test.
The changes will apply to multinational entities operating in Australia and any inward or outward investor, in line with the existing thin capitalisation regime. Financial entities will continue to be subject to the existing thin capitalisation rules.
This measure was originally announced on 27 April 2022 by the then Shadow Treasurer, The Hon Dr Jim Chalmers MP announced as part of Labor’s Federal Election commitments.
Multinational Tax Integrity Package – denying deductions for payments relating to intangibles held in low- or no-tax jurisdictions
The Government will introduce an anti-avoidance rule to prevent tax deductions for payments made directly or indirectly to related parties in relation to intangibles held in low- or no-tax jurisdictions. This measure is proposed to apply only to significant global entities (SGEs), that is, entities with global revenue of at least $1 billion and to payments made on or after 1 July 2023.
A low- or no-tax jurisdiction, for the purposes of this measure, is defined as a jurisdiction with:
- a tax rate of less than 15%; or
- a tax preferential patent box regime without sufficient economic substance.
This measure was originally announced on 27 April 2022 by the then Shadow Treasurer, the Hon Dr Jim Chalmers MP as part of Labor’s Federal Election commitments.
Multinational Tax Integrity Package – improved tax transparency
The Government will introduce reporting requirements for relevant companies to enhance the tax information disclosed to the public for income years commencing from 1 July 2023. The measure will require:
- SGEs to prepare certain tax information on a country by country (CbC) basis and a statement on their approach to taxation for disclosure by the ATO;
- Australian public companies (listed and unlisted) to disclose information on the number of subsidiaries and their country of tax domicile; and
- tenderers for Australian Government contracts worth more than $200,000 to disclose their country of tax domicile by supplying their ultimate head entity’s country of tax residency.
Digital currency – clarifying that digital currencies are not taxed as foreign currency
The Government announced that it will introduce legislation to clarify that digital currencies (such as Bitcoin) continue to be excluded from the Australian income tax treatment of foreign currency.
This will be achieved by amending the existing definition of digital currency in the A New Tax System (Goods and Services Tax) Act 1999 before adopting it as an exclusion from the definition of foreign currency in the Income Tax Assessment Act 1997.
This measure will ensure that the current tax treatment of digital currencies will be maintained, including the capital gains tax treatment where the digital currency is held as an investment.
The exclusion will not apply to digital currencies issued by, or under the authority of, a government agency, which continue to be taxed as foreign currency.
The Government intends that this measure will remove uncertainty following the decision of the Government of El Salvador to adopt Bitcoin as legal tender. This measure will apply retrospectively to income years including 1 July 2021.
Australia–Iceland tax treaty
The Government has signed the Convention between Australia and Iceland for the Elimination of Double Taxation with respect to Taxes on Income and the Prevention of Tax Evasion and Avoidance. The tax treaty was signed on 12 October 2022 and is intended to facilitate trade between the two countries, relieve instances of double taxation and give effect to the Organisation for Economic Co-operation and Development’s Base Erosion and Profit Shifting recommendations.
Indirect Tax Concession Scheme – diplomatic and consular concessions
The Government will expand the Indirect Tax Concession Scheme (ITCS) to include diplomatic and consular representations of Bhutan. The ITCS provides access to refunds of indirect tax (including GST, fuel and alcohol taxes) to eligible individuals.
The Government has also extended ITCS access for Bhutan to include construction and renovation relating to their current and future diplomatic missions and consular posts.
[The Tax Institute’s Budget Update 2022/23]
[Tax Month – October 2022 – Previous Month, 6.11.22]