Bills Digest no. 151 2012–13
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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.
20 June 2013
Purpose of the Bill
Structure of the Bill
Schedule 1—Strengthening scrip for scrip roll-over, small business entity and other concessions
Schedule 2—Ex-gratia payments for natural disasters
Schedule 3—Deductible gift categories
Date introduced: 15 May 2013
House: House of Representatives
Commencement: Sections 1-4 and Schedule 3 on Royal Assent. Schedule 1 on the day after Royal Assent. Schedule 2 is contingent on the commencement of of other proposed legislation. This is discussed further on page 11 of this Digest.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
There are three Schedules to the Tax Laws Amendment (2013 Measures No. 1) Bill 2013 (the Bill), and the purpose of the measures in each Schedule is briefly as follows:
- Schedule 1 amends the Income Tax Assessment Act 1997 (ITAA 1997) to ensure certain entitles cannot inappropriately use small business concessions and the scrip for scrip roll-over provisions to defer capital gains tax (CGT) liabilities, and to strengthen the CGT integrity rules for particular asset-holding arrangements
- Schedule 2 amends the ITAA 1997 to exempt from income tax any Disaster Income Recovery Subsidy (DIRS) payments made to taxpayers who lost income as a result of particular natural disasters occurring between 3 January and 30 September 2013 inclusive and
- Schedule 3 amends the ITAA 1997 by ensuring that donations made to public funds established solely for the provision of ethics education (as an alternative to religious instruction) in Australian government schools are tax deductible.
The Bill has three Schedules, each of which deals with discrete amendments to the taxation laws. This Bills Digest will consider the background, financial implications, compatibility with human rights, key provisions, commencement and application of the proposed amendments in each Schedule separately.
The Bill has not been referred for Committee consideration.
The Parliamentary Joint Committee on Human Rights considered that this Bill did not appear to give rise to any human rights concerns.
At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not commented on this Bill.
The scrip for scrip roll-over provisions provide CGT relief for taxpayers when their interests in a company or trust are exchanged for equivalent replacement interests in another company or trust, and a capital gain would otherwise arise – usually as a result of a takeover or merger. The roll-over defers recognition of this capital gain until a CGT event happens to the replacement interests.
A series of integrity rules are contained in the law to ensure an appropriate cost base is attributed to the replacement interests, and to prevent the inappropriate use of the roll-over. One of these rules is known as the significant and common stakeholder tests, which are used to ascertain whether an entity has the capacity to control or influence another entity by having regard to the ownership of interests in that other entity. Essentially, these tests prevent an entity which has a high voting, income or equity stake in both the original and the acquiring entity from using the scrip for scrip roll‑over to indefinitely defer tax upon disposing of the original entity’s underlying assets.
CGT relief may also be available for eligible small businesses. There are currently four CGT concessions: the small business 15-year exemption, the small business 50 per cent reduction, the small business retirement exemption, and the small business roll-over.
To ensure these concessions are only available to genuine small business structures, the relevant taxpayer must satisfy a number of basic conditions (along with additional conditions for some of the concessions). Some of the conditions seek to ensure that, for instance, the assets or turnover of entities which are related to (or ‘connected with’) the relevant taxpayer are taken into account when determining whether the relevant taxpayer should be entitled to the small business concessions. Generally, an entity will be ‘connected with’ another if it controls the other entity, or if both these entities are controlled by the same third entity, by virtue of their voting, income or equity share in this or these entities.
The expression ‘connected with’ is defined outside of the CGT provisions. Insofar as it acts as an integrity measure for the small business concessions, it is known as the connected entity test.
Currently, the significant and common stakeholder tests are worded so as to apply only if an entity holds relevant interests for their own benefit, and not on behalf of others. An argument could be made that interests held by life insurance companies, superannuation funds and trusts are excluded from these tests because these entities do not own these interests for their own benefit – that instead they hold them for the benefit of their policy holders, members or beneficiaries. On this view, these entities could inappropriately access the scrip for scrip roll‑over to defer capital gains tax liabilities.
Similarly, the connected entity test generally only applies to entities which hold relevant interests for their own benefit, or those which have the right to acquire such interests for their own benefit. This means that large businesses could interpose a trust within their business structure so as to break the link between other related entities, given that a trust does not hold interests for its own benefit. In doing so, entities that would otherwise be ‘connected with’ one another would no longer be so connected, meaning that an otherwise large business could inappropriately be able to access the small business concessions.
In the 2011–12 Budget, the Government announced that amendments would be made to ensure that all entities (including life insurance companies, superannuation funds and trusts) would be subject to the significant and common stakeholder tests for the purposes of the scrip for scrip roll‑over provisions. The Government also announced that similar amendments would be made to ensure that trusts would not be able to avoid being treated as connected entities for the purpose of ascertaining eligibility for the small business concessions. To the extent these amendments affected CGT, they would take effect from the date of the announcement, which was 10 May 2011.
In May 2011, Treasury released a proposals paper entitled Greater consistency in the scrip for scrip roll-over and the small business entity provisions, which was soon followed by draft legislation. Following consultation on these documents, the Government announced in the 2012–13 Budget that further amendments would be necessary to support the effective operation of the earlier amendments. These further amendments would put beyond doubt that absolutely entitled beneficiaries, bankrupt individuals, security providers and companies in liquidation would all be treated as the owners of certain assets for the purposes of the proposed earlier amendments to the scrip for scrip roll-over provisions and the small business concession provisions. To the extent these amendments affected CGT, they would apply from the 2008–09 income year if the taxpayer so chose; otherwise, from the date the amendments received Royal Assent.
To canvass these further amendments, in June 2012 Treasury released a further proposals paper entitled Changes to support the measure to provide greater consistency in the scrip for scrip roll-over and the small business entity provisions, which too was followed by draft legislation. Consultation on these documents resulted in the preparation of the proposed legislation which is contained in Schedule 1 to this Bill.
The Explanatory Memorandum to this Bill states that the amendments made by Schedule 1 will result in additional revenue as shown in the table below.
The Government considers that Schedule 1 is compatible with human rights as it does not raise any human rights issues. 
Part 1 of Schedule 1 to this Bill ensures that legal ownership (and not the beneficial ownership) of an entity’s relevant interests will be considered when applying the significant and common stakeholder tests. This is achieved by items 1 to 4, which remove all references to beneficial ownership in the definitions of significant stake and common stake, which are expressions used in the significant and common stakeholder tests.
Item 5 ensures that these changes apply in relation to CGT events happening after the measure was announced, that is after 7.30pm on 10 May 2011. Item 6 puts beyond doubt that these amendments do not affect previous interpretations and applications of the provisions which they are amending.
Part 2 of Schedule 1 to this Bill ensures that legal ownership (and not the beneficial ownership) of an entity’s relevant interests will be considered when applying the connected entity test. This is achieved by items 7 and 8, which remove the references to beneficial ownership with regard to direct control and indirect control, which are concepts used in the connected entity test.
Since these changes are outside of the CGT provisions, and will impact on various other tax law provisions, they are subject to differing application provisions. Item 9 states that to the extent these changes affect CGT, they apply in relation to CGT events happening after the measure was announced, that is, after 7.30pm on 10 May 2011. However, to the extent the changes affect the application of the wine equalisation tax (WET), the changes would apply in relation to financial years commencing on or after this Bill receives Royal Assent. Should these changes apply in any other circumstance, they would apply in relation to the 2011–12 and later income years.
Item 10 puts beyond doubt that these amendments do not affect previous interpretations and applications of the provisions which they are amending.
Part 3 of Schedule 1 to this Bill makes a series of amendments to the ITAA 1997 to ensure the changes made in Parts 1 and 2 will interact properly with other provisions which deal with absolutely entitled beneficiaries, bankrupt individuals, companies in liquidation and security providers. The amendments made by Part 3 are summarised below:
- section 106–35 of the ITAA 1997 is replaced with a new provision which ensures that, for the purposes of the CGT and connected entity provisions, a company under liquidation continues to be treated as the owner of an asset which has otherwise been vested in the liquidator (item 16)
- subdivision 106–C of the ITAA 1997 is replaced with a new provision which ensures that, for the purposes of the CGT and connected entity provisions, an absolutely entitled beneficiary will be treated as the owner of an asset which is otherwise held on trust by the trustee – but only once the beneficiary becomes absolutely entitled to the asset (new subsection 106-50(1))
- subdivision 106–D of the ITAA 1997 is replaced with a new provision which ensures that any act done in relation to maintaining a security, charge or encumbrance over an asset should be taken to be done by the security provider and that, for the purposes of the CGT and connected entity provisions, the security provider continues to be treated as the owner of an asset which has otherwise been vested in a security holder (new subsection 106-60(2))
- section 106–30 of the ITAA 1997 is amended so as to ensure the disregarding of the vesting of an asset in a trustee in bankruptcy, for CGT purposes, also applies for the purposes of the connected entity test – meaning the connected entity test will apply to the bankrupt individual, and not the trustee (items 12 to 15)
- subsection 104–10(7) and section 109–15 of the ITAA are repealed, because the exceptions (to a CGT event A1) which are provided in these provisions are no longer applicable, in light of the other amendments made by Part 3 of Schedule 1 to this Bill (items 11 and 18) and
- notes to accompany subsection 328–125(1) are inserted to inform users of the connected entity provisions about the CGT provisions which have been amended, by Part 3 of Schedule 1 to the Bill, to now interact with the connected entity test provisions (item 19).
Item 20 prescribes the varying dates on which the amendments in Part 3 of Schedule 1 to this Bill are to apply from. The Explanatory Memorandum to this Bill clearly articulates how these varying application dates interrelate with one another.
The amendments in Schedule 1 to this Bill will commence on Royal Assent; however there are a series of application provisions. To the extent these amendments affect the CGT provisions, the amendments will either apply in relation to CGT events happening after 7.30pm on 10 May 2011 (when the original amendments were announced) or in relation to CGT events happening after this Bill receives Royal Assent. However, if an amendment has this latter application date, the taxpayer may also elect to have an amendment apply in relation to CGT events happening during the 2008–09 or later income years. As such retrospective application is at the option of the relevant taxpayer, it cannot be said to disadvantage them.
There are other application dates which are specific to how some of the amendments in Schedule 1 to this Bill are used – for instance, if they are used for the purposes of the WET provisions in the ITAA 1997. For more comprehensive information about the varying and optional application dates for all of the amendments in Schedule 1 to this Bill, the reader is referred to the Explanatory Memorandum.
There are currently two main types of payments which the Commonwealth Government can provide to individuals who have been affected by natural disasters. They are known as the Australian Government Disaster Recovery Payment (AGDRP) and the Disaster Income Recovery Subsidy (DIRS). Importantly, a person’s entitlement to one does not preclude entitlement to the other.
The AGDRP is a once off, non means-tested, lump sum payment which aims to assist those affected by natural disasters with their immediate costs.  The AGDRP constitutes a payment of $1000 for eligible adults and $400 for eligible children and is operated via the social security system.  AGDRPs are exempt from income tax.
On the other hand, the DIRS is an ex-gratia payment which is made to eligible individuals who can demonstrate that they have experienced a loss of income, be it as an employee, small business person or farmer, as a direct result of a recognised natural disaster. The DIRS provides fortnightly payments for up to 13 weeks equivalent to the maximum rate of the Newstart Allowance or the Youth Allowance, depending on the person’s circumstances.
The ITAA 1997 currently provides that DIRS payments made in relation to specific natural disasters, or particular disaster periods, would be exempt from income tax. Schedule 2 to the Tax and Superannuation Laws Amendment (2013 Measures No. 2) Bill 2013 (TSLAB 2) contains amendments to the ITAA 1997 which would, among other things, exempt DIRS payments made in response to the Queensland floods which started in January 2013.
The measure in this Bill seeks to broaden the proposed exemption provided for in Schedule 2 to the TSLAB 2, to ensure DIRS payments which are made to individuals adversely affected by the Tasmanian bushfires in January 2013, by ex-Tropical Cyclone Oswald and associated floods in Queensland and New South Wales during early 2013 and any subsequent disasters up until 30 September 2013, are also exempt from income tax.
The measure in this Bill only relates to disasters up until 30 September 2013 because a new disaster recovery income support system is proposed to commence from 1 October 2013. A new payment, known as the Disaster Recovery Allowance (DRA), is proposed to standardise (and replace) the assistance currently provided by the DIRS. The DRA would come within the auspices of the social security system (much like the AGDRP), but would be taxed and subject to beneficiary tax offsets much like other social security payments. These and other modifications to the new DRA system are designed to ensure that financial assistance ‘is administered quickly and effectively in the wake of a major disaster’.
The Explanatory Memorandum to this Bill states that the amendments made by Schedule 2 will have a nil impact on revenue.
The Government considers that Schedule 2 is compatible with human rights as it does not raise any human rights issues. 
Item 1 of Schedule 2 to this Bill repeals and replaces proposed table item 5.4 in section 51–30 of the ITAA 1997. This amendment widens the application of proposed table item 5.4 from just covering DIRS payments made in response to the Queensland floods of January 2013, to covering DIRS payments made in response to any relevant natural disaster occurring between 3 January and 30 September 2013 inclusive. This amendment also extends the timeframe in which a person must claim a DIRS payment in order to be covered by this provision, from between 21 January 2013 and 4 August 2013 inclusive, to between 4 January 2013 and 31 March 2014 inclusive.
In effect, this measure ensures that if a DIRS payment is made in response to a natural disaster occurring between 3 January and 30 September 2013 inclusive, and this DIRS payment is claimed between 4 January 2013 and 31 March 2014 inclusive, then this DIRS payment will be exempt from income tax.
The commencement of Schedule 2 to this Bill is contingent upon the commencement of Schedule 2 to the TSLAB 2, as it seeks to repeal and substitute a provision of the ITAA 1997 which Schedule 2 to the TSLAB 2 proposes to insert.
As such, Schedule 2 to this Bill will either commence on the start of the day it receives Royal Assent (that is, if TSLAB 2 receives Royal Assent before this Bill), or immediately after Schedule 2 to the TSLAB 2 commences (that is, if this Bill receives Royal Assent before TSLAB 2). Notwithstanding this, if the relevant provisions in Schedule 2 to TSLAB 2 do not come into effect, then the measure in Schedule 2 to this Bill will not commence.
The ITAA 1997 provides that gifts or contributions of $2 or more to a fund, authority or institution which is either covered under a deductible gift recipient (DGR) category in the law, or is specifically listed by name in the law, may be tax deductible. Organisations which meet the relevant eligibility criteria under one of these DGR categories may apply to the Commissioner of Taxation (Commissioner) to become a DGR.
Currently there are two general DGR categories in the law that make public funds, which are established and maintained solely to provide religious instruction in Australian government schools, eligible for endorsement as DGRs.
The measure in this Bill will add another general DGR category into the law, namely, public funds which are established and maintained solely to provide ethics education (as an alternative to religious instruction) in Australian government schools. To be eligible for endorsement, such a public fund must also either be a charity that is registered under the Australian Charities and Not-for-profits Commission Act 2012, or be operated by such a registered charity.
This measure will afford public funds which provide an education in ethics with similar standing for seeking endorsement as a DGR from the Commissioner, as those that provide religious education.
On 29 May 2013 the Coalition moved amendments to this Bill, seeking to excise Schedule 3 in its entirety. Shadow Assistant Treasurer Mathias Cormann stated that while the Coalition had no philosophical objection to ethics classes, the Coalition was ‘not comfortable to go along with the creation of a whole new category of deductible gift recipients – when there is only one eligible organisation as at present – without proper consideration of the implications of that change’.
The Coalition’s proposed amendments were not agreed to, and the Bill subsequently passed the House of Representatives in its original form.
The Explanatory Memorandum to this Bill states that the amendments made by Schedule 3 will have the following revenue implications over the forward estimates:
The Government considers that Schedule 3 is compatible with human rights as it does not raise any human rights issues.
Item 1 of Schedule 3 to this Bill inserts new table item 2.1.9A in subsection 30–25(1) of the ITAA 1997. The addition of this table item creates a new general DGR category—public funds which are established and maintained solely for the provision of ethics education in Australian government schools as an alternative to religious instruction, in accordance with state or territory law. Provided that any such public fund is registered under the Australian Charities and Not-for-profits Commission Act 2012, or is operated by a registered charity, it will be eligible to be endorsed as a DGR by the Commissioner.
Item 2 of Schedule 3 to this Bill makes a consequential amendment, ensuring that the new general DGR category (as provided for by Item 1) appears in the index of Division 30 of the ITAA 1997.
Item 3 of Schedule 3 to this Bill states that only those gifts and contributions made on or after the commencement of Schedule 3 will be covered by the amendments. As such, this measure will have only prospective application.
The amendments in Schedule 3 to this Bill will commence on Royal Assent, and will only apply to gifts or contributions made on or after commencement.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
. Ibid., sections 124–782 and 124–783.
. Ibid., Division 152.
. Ibid., section 328–125.
. ITAA 1997, op. cit., section 124–783.
. Ibid., section 328–125.
. Explanatory Memorandum, op. cit., pp. 16–17.
. ITAA 1997, op. cit., section 52–10, table item 2AAA.1.
. Explanatory Memorandum, op. cit., p. 4.
. Table item 5.4 is proposed to be inserted by item 2 of Schedule 2 to the Tax and Superannuation Laws Amendment (2013 Measures No. 2) Bill 2013, op. cit.
. ITAA 1997, op. cit., subsection 30–25, table items 2.1.8 and 2.1.9.
. Explanatory Memorandum, op. cit., p. 27.
. Tax Laws Amendment (2013 Measures No. 1) Bill 2013, Amendments to be moved by Mr A D H Smith, viewed 19 June 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Famend%2Fr5036_amend_b445947a-75b9-49ff-a159-b10bc4699fe9%22
A Smith, ‘Second reading speech: Tax Laws Amendment (2013 Measures No. 1) Bill 2013’, House of Representatives, Debates, 29 May 2013, p. 30, viewed 19 June 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F9887dbf0-2eba-448e-82db-0288b44668a2%2F0098%22
. Explanatory Memorandum, op. cit., p. 5.
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