BILLS DIGEST NO. 88, 2013–14              16 June 2014

Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014

Margaret Lee
Economics Section 

Date introduced: 29 May 2014

House:  House of Representatives

Portfolio: Treasury

Commencement: Royal Assent

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/.

Purpose of the Bill

The purpose of the Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014 (the Bill) is to implement three separate and unrelated measures:

•          to increase the Medicare levy low-income threshold for families and the dependent child-student component of the threshold[1]

•          to introduce a one-off protection provision which ensures that the outcome of certain income tax assessments are preserved and

•          to introduce an integrity rule to limit the ability of taxpayers to obtain a tax benefit from dividend washing.

Structure of the Bill

•       Schedule 1 amends the Medicare Levy Act 1986[2] to increase the Medicare Levy low-income thresholds for families and the dependent child-student component of the threshold in line with movements in the CPI

•       Schedule 2 amends the Income Tax Assessment Act 1936 (ITAA 1936)[3] to protect and provide certainty to relevant taxpayers that have self-assessed on the basis of particular announced measures that the Government has decided not to proceed with and

•       Schedule 3 amends the Income Tax Assessment Act 1997 (ITAA 1997)[4] to prevent taxpayers obtaining multiple franking credits (that is, a credit for tax paid by the company or other corporate tax entity) on what is effectively the same parcel of shares or other economic interest in the entity.

Committee consideration

Senate Standing Committee for Selection of Bills

At the time of writing this Bills Digest, the Senate Standing Committee for Selection of Bills had not referred the Bill for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest the Senate Standing Committee for the Scrutiny of Bills has made no comment on the Bill.

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest the Parliamentary Joint Committee on Human Rights has made no comment on the Bill.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[5] The Government considers that the Bill is compatible.

Schedule 1—Medicare levy thresholds

Background

Australia’s national health insurance scheme, Medicare—which provides free or subsidised health services to the Australian population—is partly funded by a 1.5 per cent levy on taxable income.

The rate of the Medicare levy is reduced where a person’s taxable income is below a certain threshold and in some cases a person may not be liable to pay the levy at all.[6]

In recent years, the low-income thresholds have been indexed annually in line with positive movements in the Consumer Price Index (CPI). The amendments in Schedule 1 to the Bill increase the low-income thresholds for families and the dependent child-student component of the threshold in line with movements in the CPI. Importantly, the Bill does not increase the low-income thresholds for single taxpayers with no dependants, single senior Australians and single pensioners with no dependants. This is because previous legislation increased these thresholds and they remain in excess of the notional CPI indexed thresholds for 2013–14.[7]

Financial implications

The Explanatory Memorandum outlines the revenue implications of increasing the low-income thresholds for families and the dependent child-student component of the threshold, for each of the forward years. This measure is estimated to have a cost to the revenue of $48.0 million over the forward estimates period.

Table 1: Revenue impact of increase to the Medicare levy threshold ($m)

2013–14

2014–15

2015–16

2016–17

2017–18

Nil

-$9.0

-$13.0

-$13.0

-$13.0

Source: Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, p. 3, accessed 5 June 2014.

Key issues and provisions

Items 2 and 5 of Schedule 1 to the Bill operate to replace the previous family income threshold of $33,693 with the new threshold of $34,367 in subsections 8(5) to (7) of the Medicare Levy Act.

Item 3 of Schedule 1 to the Bill operates to increase the child-student component of the family income threshold from $3,094 to $3,156 for each dependent child-student.

Table 2 summarises the effect of Schedule 1. It sets out the increased thresholds and phase-in ranges for
2013–14. The previous thresholds are shown in brackets. For families with more than six dependent children, add $3,156 per dependent child-student for 2013–14 ($3,094 for 2012–13).

Table 2: Medicare levy low-income threshold amounts and phase in ranges for families 2013–14

Families with the following children and/or students

No levy payable if family taxable income does not exceed (figure for 2012–13)

Reduced levy if family taxable income is within range (inclusive)

Ordinary rate of levy payable where family taxable income is equal to or exceeds (figure for 2012–13)

0

$34,367 ($33,693)

$34,368 – $40,431

$40,432 ($39,639)

1

$37,523 ($36,787)

$37,524 – $44,144

$44,145 ($43,279)

2

$40,679 ($39,881)

$40,680 – $47,857

$47,858 ($46,919)

3

$43,835 ($42,975)

$43,836 – $51,570

$51,571 ($50,559)

4

$46,991 ($46,069)

$46,992 – $55,283

$55,284 ($54,199)

5

$50,147 ($49,163)

$50,148 – $58,996

$58,997 ($57,839)

6

$53,303 ($52,257)

$53,304 – $62,709

$62,710 ($61,479)

Source: Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 9.

Comments

This measure comes at a cost to Government and so has not generated comments amongst stakeholders in the same way that the proposed Medicare co-payment, for example, has drawn attention from the community and health providers.

Schedule 2—Protection provision

Background

On 6 November 2013, the Government indicated that it may not proceed with 64 taxation measures announced by the previous Government and would undertake a consultation process.[8] On 14 December 2013, the Government announced that 48 of these measures would not proceed.[9]

The measures in Schedule 2 to the Bill are an acknowledgement that many taxpayers would have self-assessed and lodged income tax returns in anticipation that the measures announced by the previous Government would go ahead. They seek to address particular consequences of a practice of ‘legislation by press release’ in relation to taxation measures, where those measures do not proceed. Long lead times between announcement and enactment, ambiguity in announcements and revisions to announced measures have been other sources of uncertainty arising from this practice.[10] The impact on taxpayers and the Australian Taxation Office (ATO) has been noted by the Inspector-General of Taxation.[11]

The practice represents one type of retrospective legislation. Tax practitioners have raised the implications of various aspects of the practice before various Parliamentary committees, with Government and in professional articles.[12] The practice has also been a longstanding issue for the Senate. For example, on 8 November 1988 the Senate declared the principles under which it would consider retrospective tax legislation.[13] The Senate Standing Committee on the Scrutiny of Bills considers all Bills and alerts Senators when it identifies a problem with a Bill.[14]

The consequences of not proceeding with announced tax measures, where taxpayers have anticipated a beneficial impact, are usually dealt with administratively.[15] The amendments in Schedule 2 to the Bill essentially align with existing practice.[16]

They provide protection for affected taxpayers, in certain circumstances, first, by barring the Commissioner of Taxation (the Commissioner) from amending an income tax assessment and second, by restricting the Commissioner’s capacity to recover amounts that would otherwise be considered to be overpayments.

In response to these amendments, the Institute of Chartered Accountants has called for a better model for tax policy design, development and implementation.[17] However, the relief provided by the proposed provision is:

… intended to be a one-off initiative, reflecting the need for the Government, on being elected, to take stock of the considerable number of announced but unenacted tax and superannuation measures that were on hand. The decision to provide protection on this occasion in part reflects the Government’s commitment to provide certainty for taxpayers by not proceeding with a significant number of these measures.[18]

A key difference between the administrative approach and the legislative approach in Schedule 2 is that it ensures that taxpayers do not need to seek amendments or revisions from the Commissioner.[19]

Financial implications

The Explanatory Memorandum identifies that the financial impact of this initiative is minimal.[20]

Key issues and provisions

Item 2 of Schedule 2 inserts proposed section 170B into the ITAA 1936.

Of the 48 measures that the Government decided not to proceed with on 14 December 2013, the protection provision is considered relevant to 13 announcements which are listed at proposed subsection 170B(8) of the ITAA 1936 . The protection offered by proposed section 170B will not apply to any announcement that is not listed.[21]

Proposed section 170B of the ITAA 1936 contains two protections.

The first protection is that the Commissioner cannot amend an assessment of a taxpayer about a particular so as to produce a less favourable result if the taxpayer has anticipated amendments, the assessment of the particular was made on the basis that the anticipated amendment would be made and if the assessment was amended the particular would be ascertained as if the anticipated amendments would not be made.

The operation of the concept of ‘less favourable result’ is not defined in Schedule 2, but is intended to mirror the concept of ‘more favourable result’ that already exists in tax administration arrangements. In an income tax context, an assessment that increases income tax payable is an example of a ‘less favourable result’.[22]

The second protection arises in circumstances where a taxpayer may be immediately exposed to a ‘less favourable result’ without there being an amended assessment. For example, the taxpayer may have received a refund of excess tax offsets for franked dividend distributions as a result of an anticipated amendment. This is a type of administrative overpayment.[23]

Provided the conditions for anticipated amendments are met in relation to such administrative overpayments, proposed subsection 170B(2) of the ITAA 1936 ensures that the taxpayer is regarded as being entitled to the amount.[24]

Proposed subsection 170B(3) of the ITAA 1936 operates to define an anticipated amendment. It provides that one or more hypothetical amendments to the law will be anticipated amendments for a taxpayer if they reasonably reflect an announcement listed in proposed subsection 170B(8) and the taxpayer has made a statement to the Commissioner that:

•       is consistent with one or more of the announcements listed in proposed subsection 170B(8)

•       is made in good faith and

•       meets the timing requirements for when the relevant listed announcement was on foot.

Discontinued announcements are regarded as being on foot from the announcement date in column 2 of proposed subsection 170B(8) until 14 December 2013. The timing requirements are set out in the Table at proposed subsection 170(B)(3). The table operates so that:

•       for statements made in returns lodged on or before 14 December 2013—the return is required to have been lodged in the period that the announcement was on foot (and was not required to be lodged before the original announcement date)

•       for statements made otherwise than in a return (for example, seeking an amendment to a return)—the statement is required to have been made in the period that the announcement was on foot

•       for statements made in an original return after 14 December 2013 (that is, after the announcement was on foot) and the return was not required to be lodged on or before that date—the statement is required to relate to application of the taxation law (as hypothetically amended) to events or circumstances within the required time. Namely, the events or circumstances are required to have happened or existed on or before 14 December 2013 (or the taxpayer is required to have definitively committed to their happening or existence on or before that date).

Schedule 3—Preventing distribution washing

Background

What is distribution washing?

‘Distribution washing’ (or ‘dividend washing’ in the case of companies), is a practice where a taxpayer obtains multiple franking credits (that is, a credit for tax paid by the company or other corporate tax entity)[25] on what is effectively the same parcel of shares or other economic interest in an entity.

They achieve this by selling the economic interest just after they have become entitled to the franked distribution (for example, franked dividend), and immediately purchasing an equivalent interest with a further entitlement to a franked distribution. The other party to these transactions place a low value on franked dividends (such as non-residents), so the process results in the transfer of value of franking credits from shareholders who are not able to use them to those who can.[26]

History

In the 2013–14 Budget, the former Labor Government announced that it would address the practice of ‘dividend washing’.[27] As foreshadowed in that Budget, Treasury undertook a consultation process on design and implementation of the reform proposal, which was completed in July 2013.[28] Progress ceased with the calling of the election and on 6 November 2013, the Government stated that the measure to prevent dividend washing would proceed as announced.[29]

Financial implications

The Explanatory Memorandum identifies that the financial impact of this initiative is $60.0 million over three years.[30]

Table 3: Revenue impact of preventing distribution washing ($m)

2013–14

2014–15

2015–16

2016–17

Nil

$20.0

$20.0

$20.0

Source: Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 5.

Around $3 billion in transactions on a special share trading market used by entities engaged in distribution washing may have been driven by the practice.[31]

Key issues and provisions

Part 3–6 of the ITAA 1997 deals with the imputation system.[32] Division 207 in Part 3–6 deals with the effect of receiving a franked distribution.[33] Subdivision 207–F contains integrity rules.[34] This subdivision creates an appropriate adjustment to cancel the effect of the gross-up and tax offset[35] rules where the entity concerned has manipulated the imputation system in a manner that is not permitted under the income tax law.[36] Item 3 of Schedule 3 to the Bill inserts proposed section 207-157 into Subdivision 207–F of the ITAA 1997, to apply to distributions made from 1 July 2013 onwards.

Proposed subsection 207–157(1) imposes two basic requirements for the distribution washing rules to apply. First, the washed interest must have been acquired after the member[37] or a connected entity of the member,[38] disposed of a substantially identical membership interest[39] in the corporate tax entity.[40] Second, a corresponding distribution[41] must have been made to the member or a connected entity in respect of the substantially identical interest.[42]

Proposed subsection 207–157(2) of the ITAA 1997 imposes an additional requirement where a connected entity has disposed of the substantially identical interest. In this case, the distribution washing rules will only apply if it would be concluded that either the disposal or the acquisition took place only because at least one of the entities expected or believed that the other transaction had or would occur.[43]

Exceptions and interaction with the general anti-avoidance rules

Proposed subsection 207–157(4) of the ITAA 1997 provides an exception to the restrictions on distribution washing for individuals who do not receive more than $5,000 in franking credits in a year.[44] Despite this, if such individuals engage in a distribution washing scheme with more than an incidental purpose of obtaining an imputation benefit, they may still be subject to the general anti-avoidance rules in the income tax legislation.[45]

Importantly, most of the activities that are affected by the rules set out in Schedule 3 would also potentially be subject to the general anti-avoidance rules.[46] Therefore, the general anti-avoidance rules may apply to activities prior to 1 July 2013 or to schemes that are not the subject of the rules in Schedule 3.

However, according to the Explanatory Memorandum, where the specific rules in Schedule 3 apply, taxpayers do not generally need to be concerned about both the general anti-avoidance rules and the specific rules applying.[47]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              Australian Government ‘Part 1: revenue measures’, Budget measures: budget paper no. 2: 2014–15, p. 15, accessed 16 June 2014.

[2].              Medicare Levy Act 1986, accessed 12 June 2014.

[3].              Income Tax Assessment Act 1936, accessed 12 June 2014.

[4].              Income Tax Assessment Act 1997, accessed 12 June 2014.

[5].              The Statement of Compatibility with Human Rights can be found at pages 10, 40 and 59 of the Explanatory Memorandum to the Bill.

[6].              The Australian Taxation Office website has more information on how the Medicare levy threshold system works for those on low incomes in the webpage titled ‘Reduction for people on low incomes', ATO website, accessed 2 June 2014.

[7].              Clean Energy (Tax Laws Amendments) Act 2011, accessed 12 June 2014.

[8].              J Hockey (Treasurer) and A Sinodinos (Assistant Treasurer), Restoring integrity in the Australian tax system, media release, 6 November 2013, accessed 2 June 2014.

[9].              A Sinodinos (Assistant Treasurer), Integrity restored to Australia's taxation system, media release, 14 December 2013, accessed 10 June 2014.

[10].              T Hayes, ‘Legislation by press release: Government acts to clean up unlegislated announcements’, Insight, Thomson Reuters, 6 November 2013, accessed 5 June 2014.

[11].              Inspector-General of Taxation (IGT), ‘Review into aspects of the Australian Taxation Office’s use of compliance risk assessment tools’, Chapter 2, IGT website, accessed 3 June 2014.

[12].              See, for example, R Jeremenko, Tax Institute Blog weblog, accessed 5 June 2014; and S Franks, ‘Retrospective tax legislation’, Charter, 29 February 2012, Institute of Chartered Accountants Australia, accessed 5 June 2014.

[13].              Australia, Senate,  Taxation Laws Amendment Bill (No. 4) 1988, Income Tax Amendment Bill 1988 [and] Medicare Levy Amendment Bill 1988, Journals, 109, 8 November 1988, accessed 16 June 2014; and H Evans and R Laing, eds, Odgers' Australian Senate practice, thirteenth edn, The Senate, Canberra, 2012, chapter 13, p. 375, accessed 16 June 2014.

[14].              H Evans and R Laing, op. cit., p. 375.

[15].              Australian Taxation Office (ATO), ‘Practice statement law administration’, 2007/11, ATO website, accessed 13 June 2014.

[16].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., pp. 14–15.

[17].              Institute of Chartered Accountants Australia (ICAA), ‘Clearing backlog of unlegislated tax measures continues’, Chartered Accountants Weekly Tax Bulletin, 7 February 2014, accessed 5 June 2014.

[18].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 15, see also Board of Taxation, Post-implementation review of the tax design review panel recommendations, December 2011, p. 20, accessed 11 June 2014.

[19].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 15.

[20].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 4.

[21].              Ibid., p. 28.

[22].              Ibid., p. 19.

[23].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 24.

[24].              Ibid.

[25].              Corporate tax entity is defined in section 960–115 of the ITAA 1997 to include a company, a corporate limited partnership, a corporate unit trust or a public trading trust

[26].              News, ‘Dividend washing exposure draft legislation’, Australian Income Tax Tracker, Issue 3, March 2014, CCH, 24 March 2014.

[27].              Australian Government, Budget measures 2013–14: budget paper no. 2: 2013–14, 2013, p. 36, accessed 16 June 2014; Australia, Parliamentary Library, see also Budget review 2013–14, Research paper, 3, 2012–13, Parliamentary Library, Canberra, May 2013, p. 179, accessed 5 June 2014.

[28].              Treasury, ‘Consultations and submissions - protecting the corporate tax base from erosion and loopholes - preventing “dividend washing”’, Treasury website, accessed 5 June 2014.

[29].              A Sinodinos, Restoring integrity in the Australian tax system, op. cit.

[30].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 5.

[31].              Ibid., p. 57.

[32].              The Australian Taxation Office website has more information on how the imputation system works in the webpage titled ‘Imputation reference guide’, ATO website, accessed 11 June 2014.

[33].              For more information, see Australian Taxation Office webpage titled, ‘What is the effect of receiving a franked distribution’, ATO website, accessed 11 June 2014.

[34].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., pp. 42–3.

[35].              Section 4–10 of the ITAA 1997 provides that a tax offset reduces the amount of income tax a person has to pay. Franking credits are one type of tax offset.

[36].              For more information, see Australian Taxation Office webpage titled, ‘Imputation integrity provisions’, ATO website, accessed 11 June 2014.

[37].              The table in subsection 960–130(1) of the ITAA 1997 identifies who is a member of a corporate tax entity. They could be, for example, a shareholder, partner, beneficiary or unit holder, depending on the nature of the entity.

[38].              A connected entity of an entity is defined in section 995–1 of the ITAA 1997 to mean an associate or another member of the same wholly-owned group. Section 995–1 of the ITAA 1997 provides that an associate has the meaning given by section 318 of the ITAA 1936, which identifies a very broad range of related parties as associates of natural persons, companies and trustees.

[39].              A membership interest is defined in section 960–135 of the ITAA 1997. It includes each interest, or a set of interests, in the entity or each right, or set of rights, in relation to the entity, held by a member.

[40].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, p. 45, accessed 5 June 2014.

[41].              Distributions by corporate tax entities are set out in section 960–120 of the ITAA 1997 and can include dividends or certain other types of transfers to the benefit of members (for example, by corporate limited partnerships, that are not termed dividends).

[42].              Substantially identical interest is given a flexible and inclusive definition by proposed subsection 207–157(3) of the ITAA 1997. Most importantly, it includes membership interests that are fungible with, or economically equivalent to, the washed interest. Fungible is not defined for this purpose. The Macquarie dictionary definition of ‘fungible’ is ‘of such a nature that one unit or portion may be replaced by another in respect of function, office, or use’.

[43].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 46.

[44].              Ibid., p. 56.

[45].              Australian Taxation Office (ATO), Income tax: can section 177EA of the Income Tax Assessment Act 1936 apply to a 'dividend washing' scheme of the type described in this Taxation Determination?, Tax Determination, TD 2014/10, ATO, 30 April 2014, accessed 16 June 2014.

[46].              Explanatory Memorandum, Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014, op. cit., p. 57.

[47].              Ibid.