Bills Digest No. 85  1999-2000 New Business Tax System (Capital Allowances) Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

New Business Tax System (Capital Allowances) Bill 1999

Date Introduced: 21 October 1999

House: House of Representatives

Portfolio: Treasury

Commencement: Upon Royal Assent, however, the measures contained in the Bill have different application dates, which will be considered in the Main Provisions section of this Digest.

Purpose

The amendments contained in this Bill are:

• Measures to remove accelerated depreciation of plant and equipment for certain taxpayers and to replace it with an effective life of plant system (Schedule 3).
• Measures to provide rules for allowing certain taxpayers to re-estimate the effective life of plant where other factors have affected the previous estimate of effective life (Schedule 5).
• Measures to remove the balancing charge offset for disposal of certain plant; and to provide a balancing charge offset for involuntary disposals to replace the existing capital gains tax roll-over relief (Schedule 2).
• Measures to provide a test to determine who is a 'small business taxpayer' for the purposes of ascertaining eligibility for the small business capital allowance concessions (Schedule 2).
• Measures to remove plant and equipment from the capital gains tax regime and to include net gains from disposal of plant and equipment in a taxpayer's assessable income (Schedule 1).
• Measures to allow depreciation deductions for the cost of an indefeasible right to use capacity in an international telecommunications submarine cable system over the effective life of the cable system (Schedule 4).

Background

The measures contained in this Bill are the capital allowance(1) changes which were announced by the Treasurer, the Hon Peter Costello, MP, in his 'The New Business Tax System' Press Release No. 58, on 21 September 1999. These measures were based on the 'Review of Business Taxation' chaired by Mr John Ralph, AO. The Treasurer announced that the key changes to business tax are:

The Treasurer announced that there would be a phased commencement of the proposed changes to the income tax law:

On 22 September 1999, the Treasurer also released the Business Tax Review's Report, A Tax System Redesigned(4) (the Ralph Report). The report contains recommendations on changing the income tax system. The proposed changes are revolutionary and extend well beyond business taxes.

Main Provisions

Accelerated depreciation (Schedule 3)

This measure proposes to amend the income tax law to remove accelerated depreciation for taxpayers other than small business taxpayers who satisfy certain qualifying conditions.

Background

Under the existing tax law a taxpayer is able to claim depreciation at accelerated rates. The rates are accelerated because the depreciation deduction exceeds the actual depreciation in value of the plant. This concession is provided to allow a taxpayer to claim depreciation deductions earlier than they would if the depreciation was based on the actual depreciation of its plant. Under the existing law depreciation is based on the effective life of plant. The rates are then broadbanded into one of six common rates. Accelerated depreciation is achieved through a 20 per cent loading on effective life rate and the broadbanding of rates.

The policy underlying this measure

The Ralph Report recommended that accelerated depreciation should be replaced with a system based on the effective life of plant. The Ralph Report states that:

102. The net impact of the company tax rate reduction/acceleration depreciation trade-off on individual companies will depend on the extent to which they currently benefit from accelerated depreciation. The volume of capital intensive investments is likely to be lower than would otherwise be the case, reflecting the net disadvantage to such investments from the accelerated depreciation/company tax rate trade-off. Conversely, the volume of less capital intensive investments is likely to be higher than would other have been the case.

103. To the extent that companies receiving a net benefit from the trade-off on individual companies then increase distribution of franked income, the benefit of any reduction in the company tax rate would be clawed back by the imputation system for resident shareholders. For non-resident shareholders the total amount of tax paid will have fallen from 36 per cent to 30 per cent and so they will receive a significant reduction in Australian tax. For unfranked dividends the position of both resident and non-resident shareholders will be unchanged. However, it is important to note that the accelerated depreciation/company tax rate trade-off will reduce the proportion of tax-preferred income, and consequently increase the proportion of franked dividends, paid by Australian companies.(5)

Removing accelerated depreciation

Accelerated depreciation will not apply to plant acquired after 11.45 am, 21 September 1999, the time of announcement. For plant acquired after that time, depreciation will be based on the effective life of the plant (item 2, proposed subsection 42-118(1)). However, accelerated depreciation rates will continue to be available to small business taxpayers for plant acquired after 21 September 1999 (discussed below at p 8).

Capital intensive industries

The measure to remove capital allowances will have greatest effect on capital intensive industries such as manufacturing and mining industries. Non-capital intensive sectors such as the financial services industry will not be adversely affected by this measure but as they will get the benefit of the 30 per cent company tax rate, this industry will be better off as a result of this measure. The Minerals Council of Australia has lobbied against this measure and stated that removing accelerated depreciation would have a severe impact on new mineral investment in Australia.(6) The NSW Branch of the ALP raised concerns about the Government's decision to phase out accelerated depreciation.(7)

Representatives from the Canberra to Sydney Speedrail Consortium asked the Government to be considered for the proposed targeted investment allowance (outlined above at p 2). A representative from Speedrail stated that:

The representatives from the proposed joint pipeline from Papua New Guinea to Queensland said that this project would be affected by the removal of accelerated depreciation.(9)

Low cost plant

Items of plant that cost less than $300 will be available for immediate write-off (item 6, proposed section 42-167).

Maintaining accelerated depreciation for small business taxpayers

Proposed Subdivision 42-K contains the conditions that a small business taxpayer must satisfy in order to obtain access to accelerated depreciation. A taxpayer must satisfy the following four requirements to qualify for this concession:

The fourth requirement is designed to ensure that taxpayers will not be able to be treated as small business taxpayers if the plant is acquired as part of the commencement of a major business or the expansion of an existing business. If an item of plant is to be used predominantly for leasing, the small business taxpayer accelerated depreciation concession will not be available.

Application

The amendments made by Schedule 3 applies to plant acquired by a taxpayer after 11.45 am, 21 September 1999 (item 14).

Working out the new effective life (Schedule 5)

The measures in Schedule 5 give taxpayers, other than small business taxpayers, the option to calculate a new effective life for plant acquired after 11.45, 21 September 1999. Small business taxpayers will continue to be eligible for accelerated depreciation.

Background

Under the existing income tax law, taxpayers can either self-assess the effective life of plant or use the Tax Commissioner's published schedules of effective life. The existing rules do not allow a taxpayer to adjust the calculation of effective life if the taxpayer decides that the original estimate is no longer accurate. As the existing system provided for accelerated depreciation, there was no need to adjust the effective life because plant was being written-off before the effective life period for the plant had expired.

The removal of accelerated depreciation has created the need for taxpayers to be able to adjust the effective life of assets. The Explanatory Memorandum states that this will allow a taxpayer to take into account market changes, technological developments or other factors, that may result in a taxpayer's plant being scrapped at a time other than the one previously chosen by the taxpayer.(11)

Recalculation of effective life

Under proposed subsection 42-112(1) a taxpayer can choose to determine a new effective life of plant if the taxpayer concludes that the effective life it has been using is no longer accurate because of changed circumstances. This election may only be used after the first income year in which the taxpayer can claim an amount for depreciation in respect of the plant. The effective life of plant may be either increased or decreased but it must be based on certain developments. Proposed subsection 42-112(4) provides examples of changes in circumstances which may result in a taxpayer working out a new effective life. The circumstances are:

• the taxpayer use of plant turns out to be more or less rigorous (proposed paragraph 42-112(4)(a)),
• there is a downturn in demand for goods or services the plant is used to produce that will result in the plant being scrapped (proposed paragraph 42-112(4)(b)),
• legislation prevents the plant's continued use (proposed paragraph 42-112(4)(c)) and
• changes in technology making plant redundant (proposed paragraph 42-112(4)(d)).

Under proposed subsection 42-112(3) taxpayers who are eligible for accelerated depreciation cannot re-estimate the effective life of the plant. For example, small business taxpayers who are eligible for accelerated depreciation may not recalculate the effective life of plant.

Under proposed subsection 58-85(3A), entities that are exempt from taxation but which become taxable will be given the ability to reassess the effective life under the same rules as other taxpayers.

Application

Under item 6 amendments apply to plant acquired by a taxpayer after 11.45 am, 21 September 1999.

Balancing adjustment offsetting (Schedule 2)

Background

The existing law allows a taxpayer to use a taxable balancing adjustment to reduce the cost or written down value of other plant, including replacement plant.(12) The Explanatory Memorandum states that:

The argument that the offset concession is inequitable is curious as this mechanism can only be effective in the circumstances set out above. The aim of having an offset mechanism is to allow those taxpayers with a taxable balancing adjustment amount to defer the taxation of that amount through the offsetting process. Moreover, this tax concession is being retained for small business taxpayers.

This concession was of significant benefit to finance companies leasing motor vehicles. These taxpayers are able to use the offset concession to defer income made from the sale of vehicles at prices exceeding their written values under accelerated depreciation. Under the proposed measures these companies will no longer be able to defer taxation on balancing adjustment amounts.

Removing balancing adjustment offsets

This measure proposes to repeal balancing adjustment offsets in respect of a balancing adjustment event which takes place after 11.45 am 21 September 1999 (proposed subsection 42-285(5)). The balancing adjustment offset will be retained for small business taxpayers (proposed subsection 42-285(6)).The small business taxpayer test is considered below at p 8.

In relation to replacement assets, this measure removes the opportunity to claim an offset in relation to replacement plant acquired within two years of a balancing adjustment amount having been included in a taxpayer's assessable income (item 9, proposed subsection 42-290(4)). This concession will be retained for small business taxpayers (item 9, proposed subsection 42-290(5)).

Involuntary disposals

For involuntary disposals of plant a taxpayer will be able to use any balancing adjustment as an offset against the cost of replacement plant (item 10, proposed section 42-293). The following involuntary disposal events are listed in proposed subsection 42-293(2):

• the original plant is compulsorily acquired by an Australian government agency,
• the original plant is lost or destroyed, and
• the taxpayer disposed of plant to an Australian government agency after the taxpayer received a notice inviting the taxpayer to negotiate with the agency on the sale of the asset to the agency and advice that if the negotiations fail, the plant will be compulsorily acquired by the agency.

For this offset the replacement plant must be acquired no earlier than one year before the time of the balancing adjustment and no later than one year after the end of the income year in which the event occurred (proposed subsection 42-293(3)). In addition, the replacement plant must be used for the purpose of gaining assessable income (proposed subsection 42-293(4)). Small business taxpayers may only use this offset if they have not chosen to use the offsets contained in sections 42-285 or 42-290 (proposed paragraph 42-293(4)(c)).

Application

The amendments in Schedule 2, apart from items 17 and 18, apply to assessments for the income year in which 21 September 1999 occurred and subsequent income years (sub-item 23(1)). Items 17 and 18 after 27 February 1998 (sub-items 23(2) and (3)).

Small business taxpayer test (Schedule 2)

The Government's announcement of the 'New Business Tax System' foreshadowed the introduction of a Simplified Tax System for small business taxpayers to commence on 1 July 2001. Pending this change, small business taxpayers will retain access to the following tax benefits:

• accelerated depreciation for plant and equipment,
• balancing adjustment offsetting, and
• immediate deductions for certain advance business expenditure. The tests for determining whether a taxpayer is a small business taxpayer are contained in proposed Subdivision 960-Q.

A 'small business taxpayer' is defined as being a taxpayer who carries on business in an income year and whose average turnover for that year is less than $1 million (proposed section 960-335). Average turnover is defined as being the average of the current income year and the preceding two income years (proposed section 960-340).

An anti-avoidance measure to prevent taxpayers from segregating their business into a series of small businesses is contained in proposed section 960-345. This measure treats as one group the businesses that are controlled by the taxpayer. The notion of group turnover is based on the tests contained in the CGT roll-over relief provisions for small business taxpayers contained in Division 123 of the 1997 Act.

The surprising feature of the small business test is that it is not based on the small business tests in the goods and services legislation.(14) The main differences are:

• the threshold level for a small business in the goods and services legislation is $500,000 but the Government has announced that this level will be increased to $1 million(15)
• the goods and services legislation does not contain the measure to prevent taxpayers from segregating their businesses to fall below the threshold level.

To ease compliance costs for small businesses one would have expected that there would be a common small business test in the income tax law and the goods and services tax law. The threshold tests in the income tax law are more stringent with the anti-segregation measure. This may result in a taxpayer qualifying as a small business taxpayer under the goods and services legislation but be ineligible to be treated as small business for the purposes of the income tax law. It may be intended to amend in future the goods and services legislation to fall into line with proposed section 960-345, however, the Government has not made any announcements on this issue.

Application

The amendments in Schedule 2, other than items 17 and 18, apply from the income year in which 21 September 1999 occurs (sub-item 23(1)). The amendments proposed by items 17 and 18 apply after 27 February 1998 (sub-items 23(2) and (3)).

Full balancing adjustments on disposal of plant (Schedule 1)

Background

Under the existing rules depreciation of plant requires a disposal of plant to be subject to a balancing adjustment.(16) If the proceeds from disposal of the plant exceed the plant's depreciated value, the excess is treated as assessable income. This provides for the recoupment of the excess deductions for depreciation which a taxpayer has obtained. If, on the other hand, the disposal proceeds are less than the depreciated amount, the taxpayer may be entitled to a deduction for the difference. The disposal of plant can also result in capital gains tax (CGT) consequences for a taxpayer. The depreciation system and CGT provisions require separate records to be kept by a taxpayer.

It is argued that removing plant and equipment from the CGT system will both simplify this area of the law and reduce compliance costs for taxpayers.(17)

Proposal

The Treasurer announced, that from 11.45 am 21 September 1999, the proposed law will exempt any capital gains and losses in respect of plant and equipment.(18) Any such gains or losses will be treated as an additional balancing adjustment under the depreciation rules contained in Division 42 of the Income Tax Assessment Act (1997) (the 1997 Act).

Proposed subsection 42-192(1) includes in a taxpayer's assessable income the excess between the plant's termination value over the cost of the plant (item 7). The cost of plant is the plant's written down value and the amount that section 42-90 of the 1997 Act includes in the taxpayer's assessable income.

For plant purchased before the date of announcement, the CGT indexing of the plant's cost base will be preserved up to 30 September 1999 (proposed subsection 42-192(2)). In this situation, the amount included in assessable income will be the excess of the termination value over the CGT cost base of the plant.

Some taxpayer's may be entitled to a further balancing adjustment deduction if they can claim a deduction under section 42-195 of the 1997 Act and the plant's undeducted cost is less than the reduced cost base of the item (item 8, proposed section 42-197). The allowable deduction is the difference between the undeducted cost and the reduced cost base of the plant.

Proposed subsection 42-198(1) excludes from the new balancing adjustment measures items which are exempt from CGT. The items are:

• cars, motor cycles and valour decorations
• collectable and personal use assets, and
• plant used to produce exempt income.

Assets acquired before the commencement of the general CGT on 20 September 1985 are also exempt (proposed subsection 42-198(2)). The proposed balancing adjustment provisions do not apply if the profit made from the sale of plant is assessable under another provision of the income tax law (proposed subsection 42-198(3)). The Explanatory Memorandum states, by way of example, that if profit from the sale of plant is assessable under section 6-5 as ordinary income, then the profit is not assessable under proposed section 42-192 or proposed subsection 42-390(2A).(19)

Application

The measures contained in items 1 to 9 apply to a balancing adjustment event taking place after the time of announcement: 11.45 am, 21 September 1999 (sub-item 11(1)).

The measures in item 10 to disregard any capital gain or loss on the disposal of plant apply to a CGT event happening after 11.45 am, 21 September 1999 (sub-item 11(2)). Item 10 also applies to situations in which ownership of the item of plant took place after 11.45 am, 21 September 1999 if a contract was entered into before that time (sub-item 11(3)).

Submarine cables and indefeasible rights to use them (Schedule 4)

This measure allows taxpayers to deduct expenditure incurred on acquiring an indefeasible right to use (IRU) an international telecommunications submarine cables system as if it were plant. Under the existing law, a resident taxpayer who buys an IRU cannot claim depreciation. The expenditure can only be written off as a capital loss under the general capital gains provisions, when the right expires. Moreover, under the quarantining rules capital losses can only be deducted against capital gains made by a taxpayer. If a taxpayer does not have capital gains the taxpayer can only carry forward the capital losses to a future income year.

Background

An IRU is a legal interest created through a contract that provides a permanent and exclusive right of access to a leasee to part or all of the capacity in a telecommunications submarine cable system. The Explanatory Memorandum states that the rights obtained under an IRU is similar to owning a cable system.(20) The buyer of an IRU will generally pay an initial fee and also agrees to pay on-going payments for the operation and maintenance of the cable system. An IRU can be sold by a leasee to another person.

Treating IRU as plant

Proposed subsection 44-5(1) creates a legal fiction that IRUs are items of plant for the purposes of the depreciation provisions of the income tax law.(21) The term 'IRU' is defined in proposed subsection 44-5(2) as an indefeasible right to use an international submarine telecommunications cable system. Under proposed section 44-10 a taxpayer may begin to claim IRU depreciation deductions for the income year in which the taxpayer is used an IRU to produce assessable income.

Proposed section 44-15 provides a rate of depreciation for IRU. The rate is based on the effective life of the cable in respect of which an IRU is granted. This provision provides for the usual choice of depreciation system, the diminishing cost or prime cost methods. The rate for both methods will be based on the effective life of the cable. If a taxpayer does not know what the cable owner has determined to be the effective life of an asset, the taxpayer is able to treat itself as the owner and determine the effective life of the assets for Australian tax purposes.

Disposals of IRUs

If a taxpayer disposes of an IRU, the assignment is treated as a balancing adjustment event for the purposes of the income tax law.(22) The proposed disposal provisions also provide for part disposals of an IRU (proposed section 44-20). Under this provision the disposal of part of an IRU creates two fictional IRUs for tax purposes; one that the taxpayer continues to own and the other that the taxpayer has assigned.

Acquisition of additional capacity

A cable may have its capacity increased through technological developments. A taxpayer with an IRU may be offered additional capacity through either a new IRU or an increase in the capacity of an existing IRU. Under proposed section 44-35, if the capacity of an existing IRU is expanded, the additional fee may be claimed for depreciation purposes.

Application and transitional provisions

Under sub-items 12(1) and (2) the amendments made by Schedule 4 in relation to IRUs and part IRUs apply to IRUs acquired under contracts entered into after 11.45 am, 21 September 1999. The amendments do not apply to an international telecommunications cable system or an IRU, if the system had been used for telecommunications purposes before 11.45 am, 21 September 1999 (sub-item 12(3)).

Endnotes

2. The term 'capital allowances' refers to the deductions provided in the income tax law for certain kinds of capital expenditure. For example, deductions provided for depreciation of plant are capital deductions.

3. Treasurer's Press Release No 58, 'The New Business Tax System', 22 September 1999.

4. (AGPS, Canberra, 1999).

5. (AGPS, Canberra, 1999).

6. The Business Tax Review (1999).

7. The Australian Financial Review, Wednesday 22 September 1999, p. 9.

8. The Australian Financial Review, Wednesday 5 October 1999, p. 5.

9. The Australian Financial Review, Thursday 23 September 1999.

10. ibid.

11. The term 'quasi-owner' is defined in subsection 995-1(1) of the Income Tax Assessment Act 1997 as having the meaning given by Subdivision 42-I. Under subsection 42-310(1) of Subdivision 42-I a taxpayer is a quasi-owner of plant if the taxpayer attached the plant to the land the taxpayer holds under a quasi-ownership right granted by an exempt Australian Government agency or an exempt foreign government agency. The term 'quasi-ownership right' is defined in subsection 995-1(1) as meaning a lease over land; an easement in connection with the land; or, any other right, power or privilege over the land, or in connection with the land.

12. Explanatory Memorandum to the New Business Tax System (Capital Allowances) Bill 1999, para 6.4.

13. Sections 42-285 and 42-290 of the Income Tax Assessment Act 1997.

14. Explanatory Memorandum to the New Business Tax System (Capital Allowances) Bill 1999, para 2.3.

15. Section 29-40 of A New Tax System (Goods and Services Tax) Act 1999.

16. Item 39 of Schedule 1 of A New Tax System (Indirect Tax and Consequential Amendments) Bill 1999.

17. Division 42 of the Income Tax Assessment Act 1997.

18. Treasurer's Press Release, No. 58 'The New Business Tax System', Attachment B and Explanatory Memorandum to the New Business Tax System (Capital Allowances) Bill 1999, para 1.3.

19. Treasurer's Press Release No. 58 'The New Business Tax System' of 21 September 1999.

20. Explanatory Memorandum to the New Business Tax System (Capital Allowances) Bill 1999, para 1.11.

21. Explanatory Memorandum to the New Business Tax System (Capital Allowances) Bill 1999, para 5.9.

22. Division 44 of the Income Tax Assessment Act 1997.

23. Section 42-30 of the Income Tax Assessment Act 1997.

Contact Officer and Copyright Details

Michael Kobetsky
26 November 1999
Bills Digest Service
Information and Research Services

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ISSN 1328-8091
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