Bills Digest no. 132 2008–09
Tax Laws Amendment (2009 Measures No. 2) Bill
2009
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
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date
introduced: 19 March
2009
House: House of Representatives
Portfolio: Treasury
Commencement:
All items commence on the
day of Royal Assent except for item 1 of Schedule 2 which commenced
on 21 June 2007, Schedule 3 and Schedule 7 which commence on 1 July
2009, Part 2 of Schedule 8 which commences on 1 July 2011, and Part
2 of Schedule 4 which commences on 1 July 2014. Part 2 of Schedule
5 commenced on 1 January 2008 (which was the commencement of
Schedule 3 to the Tax Laws Amendment (Repeal of Inoperative
Provisions) Act 2006) and Part 2 of Schedule 6 commences on a
single day to be fixed by Proclamation, or 12 months from Royal
Assent, whichever occurs first.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
There are a slew of programs in
the May 2008 Budget and also the recently announced measures as a
consequence of the Victorian bushfire and the global financial
crisis that have tax implications, which will come under the
purview of this Bill.
The Bill contains eight schedules, each of which has a different
purpose, depending on its subject matter, including:
- modifying the tax treatment of any payments made by the
Australian Prudential Regulation Authority (APRA) under the
financial claims scheme
- increasing access to the small business capital gains tax
concessions
- exempting from capital gains tax any capital gains or losses
arising from a right or entitlement to a tax offset, deduction or
similar benefit
- refundable tax offsets for certain projects under the National
Urban Water and Desalination Plan
- modifying the list of deductible gift recipients
- the Australian Business Register and the register acting as the
Multi-agency Registration Authority
- removing the Greenhouse Challenge Plus Programme condition for
fuel tax credits, and
- for tax purposes, exempting the Clean-up and Restoration Grants
paid to small businesses and primary producers affected by the
recent Victorian bushfires.
As there is no central theme to the
Bill, the background to the various measures and the related main
provisions will be considered according to the order they are
contained in the eight Schedules.
The Bill was referred to
the Senate Economics Committee for inquiry, with the
report being tabled on 7 May.[1] The committee recommended that the Bill be
passed.
The purpose of the provisions in Schedule 1 is
to modify the current treatment of payments by the APRA or a
liquidator to depositors under the financial claims scheme. The
changes reflect the bona fide nature of the payment for
tax purposes, treating the payment as if it had been made by the
failed institution that APRA or the liquidator replaces.
Usually, the failure of such treatment of payments by APRA would
have resulted in adverse tax consequences for the receivers of the
payment.
In October 2008, the Rudd Government introduced the financial
claims scheme (FCS) by amending the Banking Act 1959 (the
Banking Act) and Insurance Act 1973 (the Insurance Act)
through the Financial System Legislation Amendment (Financial
Claims Scheme and Other Measures) Act 2008.
As noted in the Explanatory Memorandum for the current Bill:
[The financial claims scheme] allows APRA to
pay depositors in failed financial institutions some part of their
deposit, subject to a global limit determined by the Treasurer when
he or she activates the scheme in a particular case. To the extent
that APRA makes a payment, that part of depositors rights to
recover their deposit is assigned to APRA.[2]
The scheme also applies to payments under a general insurance
policy.
The following account holders are entitled to receive payments
under the scheme:
- an Authorised Deposit-taking Institution (ADI) deposit
holder
- a claimant under a general insurance policy
- holders of Farm Management Deposits (FMDs)
- holders of retirement savings accounts (RSAs)
- holders of first home savers accounts (FHSAs)
Currently, tax may be assessed on any interest or gains paid,
payable or credited on financial deposits held in an ADI. The
derived benefit is treated as income and must be included in the
deposit holder s assessable income.
Under the amendments contained in Schedule 1, capital gains and
capital losses arising from the rights under the scheme are
disregarded, thus ensuring the scheme does not trigger any CGT
consequences that would not have arisen if the scheme was not
activated.
Under proposed section 393-80 of the Income
Tax Assessment Act 1936 (ITAA 1936), contained in item
15, there are no adverse taxation implications for holders
of FMDs arising from the scheme where FMDs are held with ADIs. The
actions of both the liquidators of failed ADIs and the
administrator of the financial claims scheme will be covered under
this new arrangement with the creation of any new FMDs being
treated from a tax perspective as a transfer from the old ones.
The treatment will be the same as above for RSAs held with
failed ADIs.
Currently in order to restrict the account holder s entitlement
to the government contribution, the First Home Savers Account
Act 2008 (the FHSA Act) does not allow any transfer from one
FHSA provider to another FHSA provider.
Under the new arrangement contained in item 9
(being proposed section 128A of the FHSA Act), the
FCS payment will fit within paragraph 11(3)(a) of the FHSA Act,
enabling APRA to open a new FHSA and transfer the funds on behalf
of the individual without affecting their eligibility.
However, if there is a delay in opening up a new FHSA with a new
ADI, the situation may arise where the individual is no longer
eligible to have an FHSA (e.g. because they have acquired a
qualifying interest in a dwelling). If that is the case,
individuals will have to report to the new provider about their
ineligibility within 30 days. The tax and penalty consequences of
ineligibility, upon receipt of the notice, will be as close as
possible to what they would have been if the original FHSA provider
had not failed.
With the Government likely to change the extent of the deposit
guarantee in the future, proposed Section 128A also allows the
liquidator to pay a distribution (from the liquidation of the
provider of the old FHSA) into a new FHSA, even if the FHSA
eligibility requirements are not met.
As current FHSA providers are liable to be prosecuted for a
criminal offence if they make payments beyond the limits under the
FHSA Act, the provisions contained in Schedule 8
of that Act allow APRA to be reimbursed if that is the case. The
liquidator of an account provider will thus not be prevented from
paying APRA any monies it is entitled to as a result of becoming a
substituted creditor under the FCS in such situations.
In order to ensure that taxpayers do not have unanticipated tax
liabilities following the assessment of their taxable income for
the relevant income year, which they may have difficulty paying,
these amendments will allow APRA to solicit information from
certain entities relevant to preparing and giving statements to
account holders of the failed ADI or reports to the Commissioner of
Taxation or to comply with an obligation under a law relating to
taxation. The amendments will also ensure that the PAYG withholding
provisions apply to payments made under the FCS.
The amendments proposed in Schedule 1
essentially address any adverse taxations consequences, or any
transfer of benefits that accrue to the account holders of failed
financial institutions under the FCS. Further, the changes
streamline the reporting and tax withholding provisions that would
otherwise apply to payments made by APRA or the administrator of
the failed financial/banking companies.
However, the changes could be wrongly perceived as giving
liquidators more powers in dealing with failed ADIs on a case by
case basis, raising false expectations among account holders.
The estimates are unquantifiable, but would be negligible
because the tax outcomes are designed to be the same as if the
payments had been made by the original financial or insurance
institution.[3]
Items 1 and 30 of
Schedule 1 to the Bill provide for the
modification of Division 2AA of Part II and subsections 16AHA(1) to
(4) of the Banking Act and Part VC and subsections 62ZZKA(1) to (5)
of the Insurance Act. The proposed amendments define APRA s role
and the process for giving annual statements to the account holders
of failed ADIs and submitting a separate annual report to the
Commissioner of Taxation. The process of giving statements and
submitting reports about all amounts paid to, or applied for the
benefit of, account-holders and all amounts paid to, or applied for
the benefit of, recipients in the previous financial year have also
been proposed to conform to the above Acts once the FCS comes into
play. If there is no payment as such, APRA will not be required to
submit any statement or any report for such purposes.
Items 2 and 31 relate to the
application of a reporting provision on the amount paid or applied
before, on or after the commencement of the proposed amendments to
the Banking Act and the Insurance Act.
Item 3 inserts proposed amendments to
paragraphs 16AK(4)(ea) and (eb) of the Banking Act. The proposed
amendments will allow APRA to solicit specified information, upon
written notice, about an account holder for the purposes of
preparing and giving a statement or reporting under proposed
section 16AHA (see Item 1 of Schedule 1 above), and complying with
an obligation under a law relating to taxation.
Item 8 contains a note to existing subsection
31(1) of the FHSA Act to make it clear that section 31(which states
that a FHSA provider must not make a payment from a FHSA unless
authorised by law) does not prevent APRA making a payment under the
financial claims scheme. This will ensure any tax or penalty
consequences are deferred until a new account has been established
with a new FHSA provider after the usual delay in the completion of
such transfers by the liquidators of a failed ADI or insurance
company.
Item 9 inserts proposed section
128A into the FHSA Act, which introduces special
provisions that apply if FCS entitlements arise in relation to
FHSAs. The amendments provide that the payment of a scheme
entitlement into a new FHSA is treated as a transfer between FHSAs
as contained in paragraph 11(3)(a) of the FHSA Act, which stops a
transfer from one FHSA provider to another provider being eligible
for the government contribution.
The amendments would:
- ensure the eligibility rules in paragraphs 15(1)(e) and (f) of
the FHSA Act are disregarded;
- allow APRA or the liquidator their obligations under the
financial claims scheme to open a new account for the FHSA
holder;
- provide that the person gives notice within 30 days after
notice is sent that a new account has been opened in his or her
name with a new FHSA provider; and
- ensure that APRA s right to be reimbursed out of money held in
the declared ADI is not affected by the limits on payments out of
FHSA accounts contained in section 31 of the FHSA Act.
Item 10 provides that the amendments of the
FHSA Act contained in the Bill apply from on 17 October
2008.[4] This gives a
retrospective effect to the tax treatment of the payments with the
enforcement of the scheme, so that no taxpayer is adversely
affected.
Item 15 modifies the entitlement under Division
2AA of Part II of the Banking Act in connection with an account
containing farm management deposits (FMDs). Item
15 inserts proposed subdivision 393-D of
the ITAA 1936, which provides special rules relating to the
financial claims scheme for account-holders with insolvent ADIs.
Particularly, it modifies the operation of existing sections 393-35
and 393-40 of the ITAA 1936 by making a new deposit at a new ADI,
either by the account holder or by the liquidator of a farm managed
deposits. The modification also ensures that the taxpayer is not
assessed on unpaid FMDs under the scheme by inserting
proposed section 393-85 of Schedule 2G to the ITAA
1936. This section deals with the repayment of a FMD held in an
insolvent ADI if the account-holder dies, is bankrupt, or ceases to
be a primary producer.
Item 16 provides that the amendments to
Schedule 2G to the ITAA 1936 contained in items
11-15 of Schedule 1 apply retrospectively to assessments
for the year of income including 18 October 2008 and later
years.
Item 20 inserts proposed Division
253 to the ITAA 1997 to provide that the income tax law is
applied to a taxpayer if an amount is paid under the financial
claims scheme in the same way as if the amount was paid by the ADI
under the terms and conditions of the agreement for keeping the
account. Proposed section 253-10 provides that a
taxpayer should disregard a capital gain or loss a taxpayer makes
because of the operation of the financial claims scheme.
Proposed section 253-15 specifies that the cost
base of the part of a deposit which is covered by the scheme is
equal to the payment under the scheme, and the cost base of the
remainder of the deposit will be equal to the deposit reduced after
the payment.
Item 21 inserts proposed section
306-25 dealing with payments to retirement savings
accounts (RSAs) connected with the financial claims scheme. It
modifies the treatment of RSAs under the taxation arrangements that
apply after the operation of the scheme under Division 306, and
reporting obligations under Division 390 of the ITAA 1997. Division
306 sets out the tax treatment of payments made from one
superannuation plan to another superannuation plan, and of similar
payments. This item enables such accounts to enjoy similar
treatment under the scheme, without any adverse tax and penalty
consequences.
Item 26 inserts proposed Subdivision
322-B of the ITAA 1997 dealing with the tax treatment of
entitlements under the financial claims scheme. Particularly it
inserts proposed sections 322-25 and 322-30 to
specify the income tax treatment of scheme payments in respect of
general insurance policies and to specify that the disposal of
rights against an insurer to APRA and/or the meeting of a financial
claims scheme entitlement has no CGT effect. In relation to a
general insurance claim payable by a general insurer to a policy
holder, the administrator will treat the payment for income tax
purposes as if they were paid directly by the general insurer, and
made under the terms and conditions of the general insurance
policy. Any capital gain or loss arising out of ending of an
entitlement under the scheme in relation to an ADI deposit or
general insurance policy is disregarded.
Items 27 and 29 state that the new rules in
item 26 relating to the disregarding of capital
gains or losses in respect of ADI deposits or general insurance
policies apply to CGT events after 17 October 2008 (i.e. after the
commencement of the scheme).
Item 30 to 33 amend the
Insurance Act in relation to the information that APRA must give
policy holders and the Commissioner of Taxation in relation to
payments made under the financial claims scheme. Item
32 amends subsection 62ZZM(1) of the Insurance Act to give
the same character to payments under the scheme as the payments
made by the general insurer under the terms and conditions of the
policy. Item 33 inserts proposed
paragraphs 62ZZP(4)(da) and (db) allowing APRA, by written
notice, to require a certain entity to give a specified person
specified information relevant to preparing or giving a statement
or report required under section 62ZZKA of the Insurance Act (which
are relevant to complying with an obligation under a law relating
to taxation).
Item 34 inserts proposed Division
21 into the Taxation Administration Act 1953 (the
TAA 1953) dealing with entitlements relating to insolvent ADIs and
general insurers. It ensures that the PAYG withholding provisions
apply to payments made to meet an entitlement under the financial
claims scheme in a way corresponding to the way that the PAYG
withholding provisions would have applied if the payment were made
by an ADI or general insurance company.
Item 35 provides that proposed Division
21 operates retrospectively and applies to things done
before, on, or after 17 October 2008. However, item
35 also states that APRA is not required to do anything it
was not required to do before the commencement of the financial
claims scheme, and nor is it liable under criminal or civil law for
any omission occurring before that date.
Under the current law, taxpayers who do not carry on a business
but own a CGT asset that is used in a business by the taxpayer s
affiliate or an entity connected with the taxpayer, are not able to
access the
small business CGT concessions[5] via the small business entity test.
Schedule 2 makes various changes in order to increase access to
the CGT concessions for taxpayers owning a CGT asset used in a
business by an affiliate or entity connected with the taxpayer and
for partners owning a CGT asset used in the partnership
business,
The small business CGT concessions were introduced to provide
small business operators with access to additional funds for
retirement or to grow their business. The package included:
- 15 year exemption
- Retirement exemption
- Active assets 50 per cent reduction, and
- Small business roll-over.
In order to qualify for the concession, a small business must
have an annual turnover of is less than $2 million in a given
year.[6] The Tax
Laws Amendment (Small Business) Act 2007 (the Small Business
Act) retained the existing alternative eligibility criteria for
accessing the small business CGT concessions for entities that do
not meet the new small business entity test but increased the
maximum net asset value threshold from $5 million to $6 million
.[7]
Now the two different test criteria make it difficult to access
the CGT concessions for an affiliate or an entity connected with
passive asset structures, or a partnership asset owned by a partner
but not treated as a partnership asset as such.
The amendments contained in Schedule 2 to the Bill will allow a
taxpayer owning a CGT asset that is used in a business by the
taxpayer s affiliate, or an entity connected with the taxpayer, to
access the small business CGT concessions via the $2 million
aggregated turnover test (small business entity test). The
amendments will also allow partners who own a CGT asset that is
used in a partnership business to access the small business CGT
concessions via the $2 million aggregated turnover test where the
CGT asset is not an asset of the partnership .
The limitation on small business operators in accessing the
concession has been addressed through modifications to the existing
law. The schedule also makes a number of minor amendments to refine
and clarify aspects of the existing small business CGT concessions
provisions so that they operate flexibly and as intended.
The proposed amendments would essentially address the dichotomy
of accessing the small business CGT concessions for passive owners
of assets in the small business sector via the small business
entity test from 2007 08.
However, the changes may lead to a recalibrating and
restructuring of asset ownership in order to access this
concession. There may be an incorrect perception that the original
small business operators may miss out on accessing the concessions
unless they do so.
Treasury released exposure draft legislation on the small
business CGT concessions on 14 October 2008.[8] In welcoming the proposed amendments,
the Taxation Institute of Australia stated in a submission
that:
While we agree with the general thrust of the
Exposure Draft as released, there are two specific issues which we
wish to raise:
- We believe that the approach, which operates to deem an entity
to be an SBE [small business entity] when they are not otherwise an
SBE, is unnecessarily cumbersome and crates an unnecessary fiction
(to add to the multitude of fictions already created by the Act).
An alternative, and, we believe, simpler approach suggested merely
add to the categories of entities prima facie eligible for the CGT
SB concessions.
- The deeming of a spouse to be an affiliate should be expressly
limited to the situation where the business entity is not otherwise
connected with or an affiliate of the asset owner.
In respect of the section 150-40 amendments
(regarding main use ) we understand the need for the amendments,
and have suggested a simpler way to achieve the same outcome.
[9]
Taxpayers Australia requested in their submission that the
provision be retrospective. They stated that:
Taxpayers Australia welcomes the improvements
to the small business capital gains tax provisions however we
suggest that the proposed legislation lacks clarity being too
repetitious and cumbersome.
Taxpayers Australia recommends a redrafting of
the exposure draft to improve the grammatical and structural
soundness of these provisions.
The proposed commencement date in the exposure
draft is the day on which the Act receives the Royal Assent. While,
we do not favour the operation of retrospective legislation, we
acknowledge that certain taxpayers may have acted in accord with
the budgetary announcement.
This announcement as noted in Budget Measures
Budget Paper No. 2 provided the amendments would be effective from
the 2007-08 income year. We request government consider the
appropriateness of the commencement dates. [10]
In another submission, Pitcher Partners, a private legal firm,
recommended that: [11]
Division 152 [of the Bill] be amended further
such that a taxpayer is able to access the small business CGT
concessions on the sale of share or units in a company or trust
where the company or trust:
- Is a small business entity; or
- Holds an asset or assets used in the business of an entity
connected with it or of an affiliate that is a small business
entity.
In each of these circumstances, the small
business entity test could be applied in the same or a similar
manner in which it has been proposed to operate in section 152-46
of the Draft Bill.
The measure will have an unquantifiable (but minimal to small)
cost to revenue over the forward estimates .[12]
Item 1 of Schedule 2 amends
existing subparagraph 152-10(1)(c)(iii) of the ITAA 1997 to refer
to the partner s interest in an asset of the partnership. This
amendment reflects the intended operation of the provision.
Under proposed subsections 152-10(1A), 152-10(1B),
paragraphs 152-10(1A)(a) and (d), 152-10(1B)(a) to (e), paragraph
152-10(1A)(b), subparagraph 152-10(1)(c)(i) and paragraphs
328-110(1)(a) and 4(a) of the ITAA 1997, a taxpayer who
owns a CGT asset and who does not carry on a business cannot gain
access to the small business CGT concessions via the small business
entity test even if the asset belongs to the business of an
affiliate or an entity connected to or in a partnership with the
taxpayer that is a small business entity. Items 2 and
4 of Schedule 2 address this limitation
and insert provisions to cover these arrangements so that a
taxpayer who owns a CGT asset (and does not carry on a business
other than as a partner in partnership) that is used in a business
by the taxpayer s affiliate or an entity connected with the
taxpayer is able to access the small business CGT concession via
the $2 million aggregated turnover test in a given income year.
Item 8 repeals existing paragraphs 152-40(1)(a)
and (b) of the ITAA 1997 and substitutes new provisions in their
place to make the paragraphs more explicitly consistent with the
understanding that a person who owns an asset may carry on a
business alone or in partnership, by the person, his or her
affiliate, or another entity connected with the asset-owing
person.
Items 11 and 14 repeal
subsection 152-40(1A) and insert a rule (contained in
proposed section 152-47) that treats an individual
s spouse or child (under 18 years of age) as an affiliate of the
individual for the purposes of determining whether the individual
or an entity in which the individual is connected, is eligible for
the small business CGT concessions where one entity owns a CGT
asset and that asset is used, or held ready for use, in the course
of carrying on a business by another entity; or the asset is
inherently connected with a business carried on by another
entity.
Item 14 inserts various provisions (proposed
sections 152-47, 152-48 and 152-49) into the ITAA 1997 dealing with
the treatment of passively held assets. They set out how to treat
spouses and children as affiliates of the small business entity. In
seeking access to the small business CGT concessions via the small
business entity test, the aggregated revenue turnover of the entity
would include now, under this provision, turnovers of the
affiliates and entities connected with it. They also address how to
work out the taxpayer s aggregated turnover for the purpose of
applying the concessions to passively held CGT assets and set out
how a business asset is to be treated if the business is wound up
in the relevant income year.
Item 25 refines the definition of the term net
value of the CGT assets in section 150-20 of the ITAA 1997 to
explain that in calculating the net value of an entity s CGT assets
one must include any liabilities related to any shares, units or
interests held by an affiliate or entity connected with the first
entity. Currently, paragraph 152-20(2)(a) of the ITAA 1997
disregards the value of interests in entities connected with the
taxpayer or the taxpayer s affiliates to avoid double counting in
the net assets calculation, as the assets underlying these
interests are already counted. However, this excludes the
liabilities relating to such disregarded interests with the effect
that such liabilities are never taken into account in the net asset
value calculation. Under the revised provision , disadvantages such
as the exclusion of liabilities that are indirectly related to
assets whose gross value has been included in the net asset
calculation, are removed.
Item 26 modifies section 152-40 of the ITAA
1997 to ensure that all the uses of an asset are considered in
determining whether it is an active asset for the purpose of the
small business CGT concessions, and remove the focus on the main
use of an asset in the course of carrying on the business mentioned
in subsection 152-40(1) of the ITAA 1997, and focus instead on the
main use of the asset by the taxpayer. Item 27
also inserts proposed paragraphs 152-40(4A)(a) and (b) into the
ITAA 1997, to allow exclusion of any personal use of an asset by
the taxpayer who owns the asset and any personal use by an
individual who is the taxpayer s affiliate from the determination
of the main use of the asset. In the affiliating case, the
treatment of the affiliate s personal use of the asset will be
treated as the taxpayer s use.
Item 42 states that the amendments in
items 27-29 apply to CGT events that happen or
after the day when the Bill receives Royal Assent.
In the case of joint tenants and testamentary trusts,
items 30 to 32 introduce changes
to section 152-80 of the ITAA 1997 to extend access to the small
business CGT concessions to assets acquired by an individual on the
death of a joint tenant and assets that devolve to the trustee of a
trust as a result of a will of an individual where the deceased
would have been able to access the concessions. Item
43 stipulates that the changes apply to CGT events
happening in the 2006-07 income year or later income years.
Item 34 of Schedule 2 inserts
proposed subsection 152-305(1A) into the ITAA 1997
in order to extend the small business retirement exemption to
capital proceeds received in instalments by individuals.
Item 44 provides that this amendment applies to
capital proceeds received in the 2007-08 income year and later
income years.
Item 35 inserts proposed subsection
152-305(4) into the ITAA 1997 to modify the operation of
paragraphs 152-305(1)(a) and (2)(a) of the ITAA 1997 in order to
make satisfying the basic conditions for the small business
retirement exemption unnecessary if the gain arises from CGT events
J5 or J6.[13]
Item 45 stipulates that the amendment applies to
CGT events that happened in the 2006-07 income year and later
income years.
Item 36 amends subsection 152-310(3) of the
ITAA 1997 by repealing the existing provision and substituting a
new provision in its place to remove the duplicate provision for
receipt of capital proceeds in instalments by companies and
trusts.
Item 37 of Schedule 2 amends
existing subsection 152-325(1) of the ITAA 1997 to allow a company
or trust to make a retirement exemption payment indirectly through
one or more interposed entities to a CGT concession stakeholder.
Item 38 modifies existing subsection 152-325(9) by
repealing the existing provisions and substituting revised
provisions so that there is no tax impact on the interposed entity.
Indirect payments are non-assessable non-exempt income, and are not
deductible from an interposed entity s assessable income. Payments
are neither a dividend nor a frankable distribution. In order to
reduce uncertainty and complexity for taxpayers utilising the small
business retirement exemption, these amendments exclude small
business retirement exemption payments made under section 152-325
of the ITAA 1997 from the operation of section 109 and Division 7A
of the ITAA 1936 (the deemed dividend provisions ) and remove any
potential conflict between the amendments that treat indirect
retirement exemption payments between interposed entities as if
they were neither a dividend nor a frankable distribution.
Item 46 of Schedule 2 spells out
the amendments in items 36 to 38 apply to payments
that are made on or after the day on which the Bill receives Royal
Assent.
Item 39 inserts proposed subsection 328-110(6)
of the ITAA 1997 to expand the definition of small business entity
, to provide that a partner in a partnership is not in his or her
capacity as a partner, a small business entity for the income year.
Thus the small business CGT concessions do not apply.
Item 47 provides that the amendment in item 39
applies to assessments for the 2007-08 income year and later income
years.
Subitems 41(2) and (3)
describe the circumstances when an individual s spouse or child
will qualify as affiliates after the repeal of subsection
152-40(1A) of the ITAA 1997.
The small business CGT concessions require taxpayers to make
choices. For example, the small business retirement exemption and
small business roll-over are available only if a taxpayer chooses
to obtain them. Item 48 of Schedule
2 provides an extended period of time in which individual
taxpayers must choose under Division 152 of the ITAA 1997 to become
eligible for the concessions in relation to CGT events happening
before the day on which the Bill receives Royal Assent. The entity
will have until the latest of: (a) it lodges its income tax return
for the income year in which the CGT event happened, (b) 12 months
after the Bill receives Royal Assent, or (c) a later day allowed by
the Commissioner of Taxation.
Schedule 3 amends the ITAA 1997 to provide a
general exemption from CGT for capital gains or capital losses
arising from a right or entitlement to a tax offset, deduction or
similar benefit under Australian or foreign law.
From the happening of a CGT event, a typical taxpayer usually
either gains or accrues losses on any capital transaction.
Subsection 118-37(1) of the ITAA 1997 currently disregards the
capital gain or capital losses from a CGT event as a result of a
number of specified events or programs.
The present amendment makes it explicit that capital gains or
capital losses a taxpayer makes from a CGT event as a result of
receiving a tax offset, deduction or other similar benefit under
Australian or foreign law are to be disregarded.
As stated in the Explanatory Memorandum, on a highly technical
interpretation of the income tax law, taxpayers who have a right to
receive the urban water tax offset may incur CGT tax implications
on the satisfaction of the right.[14]
The measures introduced through this amendment will put beyond
doubt that a capital gain or capital loss would not arise for
taxpayers in such circumstances, or in other circumstances where a
tax offset, deduction or other taxation benefit is received.
Nil[15]
As mentioned above, item 1 of Schedule
3 amends subsection 118-37(1) of the ITAA 1997 to extend
the waiver of CGT tax implications to taxpayers who have the right
to receive tax offsets, deductions or other taxation benefits
(including land and water rights) under an Australian law, or under
the law of a foreign country or part of a foreign country.
Item 2 stipulates that the amendment will apply to
relevant CGT events happening in the 2009-10 income year or a later
income year.
Schedule 4 introduces amendments to the ITAA
1997 to provide a refundable tax offset in relation to certain
projects approved under the National Urban Water and Desalination
Plan.
There is a consensus among the Australian federal, state and
territory governments to work cooperatively in order to improve the
security of water supplies to major cities. The Rudd Government s
Water for the Future plan builds on the National Water Initiative
by bringing rural and urban water reforms together.
In order to invite investment in diverse water supply options
and encourage industry and the community to save and use water,
this plan envisages a range of initiatives. The present amendments
are part of that scheme.
Currently the Minister for Climate Change and Water (the Water
Minister) is responsible for approving financial assistance under
the plan. The present plan will be administered by the Department
of the Environment, Water, Heritage and the Arts (the Water
Department).
As stated in the Explanatory Memorandum for the Bill, the
Government proposed that the financial assistance under the plan be
determined through a competitive process and is capped at 10 per
cent of eligible up-front project capital costs up to a maximum of
$100 million, with a minimum project outlay of $30 million.
The work must be finished by 30 June 2013 to receive full
funding.[16]
Under the amendments contained in this Bill, the assistance
package will be covered as a refundable tax offset and will be
available from the 2009-10 income year.
On 9 December 2008, the Rudd Government released an exposure
draft of the National Urban Water and Desalination plan urban water
tax offset.[17] In
a submission to Treasury, the Taxation Institute of Australia
raised the following issues:
- the scope of the ED (exposure draft) and the types of entities
to which the urban water tax offset is available is too narrow, in
that urban water tax offset is not available to any private sector
entity that is not a company and that does not directly carry out
the eligible project;
- the cut-off date for claiming the urban water tax offset is
arbitrary and inflexible, effectively meaning that taxpayers will
be unable to claim an urban water tax offset for any milestones for
the eligible project met, even 1 day, after the end of the 2012-13
income year;
- the time limits of amending assessment claiming an urban water
tax offset are unreasonably long and will leave taxpayers uncertain
with respect to their tax position for unreasonably long period of
time;
- key aspect of the urban water tax offset scheme are to be
governed by yet to be released guideline that may be amended or
varies after taxpayers have been issued with a certificate under
proposed section 402-760, leaving taxpayers with ongoing
uncertainty as to their ability to claim urban water tax offsets;
and
- the assumption of obligations in return of the tax offset
should be treated as not being taxable for GST and the amount of
the offset needs to be calculated on a GST exclusive basis.
[18]
| Year |
2008-09
|
2009-10
|
2010-11
|
2011-12
|
| Amount $m |
-14.0
|
-129.0
|
-195.0
|
-315.0
|
Source: Explanatory Memorandum[19]
Item 2 of Schedule 4 inserts a
reference to the urban water tax offset in the list of tax offsets
appearing in section 13-1 of the ITAA 1997.
Section 67-25 of the ITAA 1997 currently lists all tax offsets
that are subject to the refundable tax offset rules. Item
3 inserts proposed section 67-23 setting
out the tax offsets that are subject to the refundable tax offset
rules whereas items 4 to 6 amend
existing section 67-25 to restrict its operation to refundable tax
offsets that are available for franked distributions. The urban
water tax offset (available under Subdivision 402-W) is included as
a refundable tax offset in the table in proposed section
67-23.
Item 10 of Schedule 4 inserts
proposed Division 402 into the ITAA 1997 setting
out tax measures for environment protection expenditure. Division
402 comprises only one subdivision at present, being Subdivision
402-W, dealing with the urban water tax offset. Proposed
section 402-755 states that a company is entitled to a tax
offset for an urban water project if the Water Minister certifies
that the project is eligible for the tax offset for the year.
Proposed section 402-760 sets out how and when the
Water Minister may issue the necessary certificate.
Proposed section 402-765 states that a certificate
must specify the amount of the offset, and also that in specifying
the amount, the Water Minister must comply with guidelines made
under proposed section 402-780. If circumstances
specified in the guidelines exist, the Water Minister may revoke a
certificate according to the procedure set out in proposed
section 402-770. Proposed section 402-775
provides that a company may apply to the Administrative Appeals
Tribunal (AAT) for review of specified decisions made by the Water
Minister under Subdivision 402-W, and proposed section 402-780
provides that the Water Minister must, by legislative instrument,
make guidelines about issuing and revoking certificates under
Subdivision 402-W. Subject to some exceptions, legislative
instruments are subject to the parliamentary disallowance
procedures set out in the Legislative Instruments Act
2003, particularly Part 5.
Items 11 and 12 amend the
dictionary section of the ITAA 1997 (section 995-1)to add the terms
Water Department and Water Minister .
Items 16 to 18 purport to
declare that the legislation for this measure will become
inoperative once the plan finishes in 2013-14, resulting in the
automatic repealing of the provisions with effect from 1 July 2014.
A difficulty with these provisions is that the fact of sunsetting
on 1 July 2014 only appears in a heading and not in any substantive
provision, and the importance of this fact may be easily
overlooked.
Item 19 provides for the revocation of
certificates, and related matters, after the Subdivision 402-W is
repealed. The legislation will specifically preserve the operation
of the revocation provisions, as well as the rights of the taxpayer
to AAT review, after relevant parts of subdivision 402-W are
repealed. In the case of the revocation provisions, these are
preserved for 10 years after the relevant certificate was
issued.
Schedule 5 introduces amendments to the ITAA
1997 to update the list of the deductible gift recipients (DGRs) to
include four new entities and to extend the time period of listing
for three organisations currently listed in the ITAA 1997.
The present list of DGRs allows taxpayers who make gifts of $2
or more to DGRs to claim an income tax deduction. The purpose of
such allowances is to assist eligible funds and organisations to
conduct social welfare activities through alternative sources and
to attract public support for such activities. The Government,
through this amended listing, provides for four new community and
charity organisations to enjoy the tax deductible status and
introduces a specific time limit for three other gift receiving
community and charity organisations.
Recent government initiatives in setting up the Grattan
Institute, a public policy think tank based at Melbourne
University, and in promoting interfaith interaction through PWR
Melbourne 2009 limited, prompted the new listing. The amendments
will also help Australasian College for Emergency Medicine and ACT
Region Crime Stoppers Limited, in getting community
support.[20]
| Year |
2008-09
|
2009-10
|
2010-11
|
2011-12
|
2012-13
|
Total
|
| Amount $m |
0.0
|
-2.8
|
-2.9
|
-1.0
|
-0.4
|
-7.0
|
Source: Explanatory Memorandum[21]
Item 1 adds the Australian College for
Emergency Medicine to the list of deductible recipients in
subsection 30-20(2) of the ITAA 1997, with gifts made after 2
February 2009 eligible for deduction.
Item 2 extends the gift deductibility status
for Yachad Accelerated Learning Project Limited from 1 July 2008 to
1 July 2009.
Item 3adds the Grattan Institute to the list of
deductible recipients in subsection 30-40(2) of the ITAA 1997 for
gifts made after 4 March 2009 and before 5 March 2011.
Item 4 adds ACT Region Crime Stoppers Limited
to the list of deductible recipients in subsection 30-45(2) for
gifts made after 12 February 2009.
Item 5 extends the gift deductibility status
for St George s Cathedral Restoration Fund from 1 January 2008 to 1
January 2011.
Item 6 extends the gift deductibility status
for Bunbury Diocese Cathedral Rebuilding Fund so it applies for
gifts made after 18 December 2006 and before 19 December 2010.
Item 7 adds PWR Melbourne 2009 Limited to the
list of deductible recipients in section 30-105 from 2 February
2009 to 1 January 2010.
Items 8, 9 11 and 12 introduce
amendments to the index for the division (section 30-315 of the
ITAA 1997) to reflect the above changes.
Part 1 of Schedule 6 amends the A New Tax
System (Australian Business Number) Act 1999 (ABN Act) to
improve the integrity and efficiency of the Australian Business
Register (ABR).
Part 2 of Schedule 6 introduces amendments to
the ABN Act to allow the Registrar of the ABR to act as the
Multi-agency Registration Authority to enable representatives of
associated businesses to be identified as related entities for the
purpose of communicating electronically with multiple government
agencies on behalf of the business(es).
As stated in the Explanatory Memorandum,
The Registrar [of the ABR] already registers
businesses in order for businesses to identify themselves reliably
in all their dealings with the Australian Government, including for
the purposes of the taxation laws. The existing legislation
provides that applications for an ABN must be in a form approved by
the Registrar. While the application can require name and address
and other information about associates of the business the
Registrar cannot always enforce the identification of associates of
the business.[22]
Currently, section 14 of the ABN Act requires business entities
to update certain details that are outlined in section 25 of that
Act, such as address for service of notices. Thus it imposes some
limits on the functionality of the Registrar. There is no provision
to enable the Registrar to update information about the entity
(details including such as addresses) from open sources or from
their own resources. Another limitation is the current dispute
resolution mechanism. If dissatisfied by any decision of the
Registrar, a business s redress is limited to seeking review of the
decision in the AAT.
The amendments in Part 1 relating to the use of
approved forms must be read in connection with the use of that term
in section 388-50 of the TAA Act. That provides that a return
notice, application or other documents is in the approved form only
if it is the form approved in writing by the Commissioner of
Taxation and contains the requisite information and signatures. The
use of an approved form for the purposes of the ABN Act ensures the
integrity of the ABR. The Registrar may require the use of an
approved form when a person or entity applies for an ABN which
requires the identification of the entity and its associates;
notifies changes to various details recorded on the ABR in respect
of the entity; or requests the cancellation of the entity s
ABN.
The Registrar would be authorised to update details on the ABR,
when he or she is satisfied that the details entered in relation to
an entity are incorrect, and replace them with information that he
or she believes to be correct.
The amended provisions (particularly revised section 21 of the
ABN Act contained in item 22 of Schedule 6) will
allow disputes arising out of a range of decisions of the Registrar
to be settled through an internal process review with much less
cost and delay than the current AAT review process. The internal
review process is set out in Part IVC of the TAA 1953. If the
internal review process fails, entities can resort to AAT and
Federal court processes to redress their grievances.[23]
A multi-agency registration authority attributed to the
Registrar would meet the demand of complex business dynamics and
help smooth out electronic communication with one or more
government agencies. The new authority will allow the Registrar to
identify representatives of business as part of the registration
process.
The Registrar will also be able to use public information and
information provided by the third parties on a voluntary basis to
update and correct the register in respect of details of
representatives, thus removing some constraints in information
processing.
This new authority to collect information from third party
sources may however, arbitrarily impinge upon the privacy of
business entities particularly if third party information is not
subject to verification.
Nil[24]
Item 2 of Schedule 6 repeals
subsections 9(2) and (3) of the ABN Act and substitutes revised
provisions that require an application for an ABN to be in the
approved form . This term is inserted into section 41 of the ABN
Act by item 28, which defines the term to have the
same meaning as in the ITAA 1997. There the term is defined in
section 995-1 to have the meaning given by section 388-50 in
Schedule 1 to the TAA 1953. The use of a tax file number (TFN) for
registration purposes is made voluntary under the approved form
provisions, thus maintaining respect for an individual s
privacy.
Items 3, 9 and 11 of Schedule
6 reflect the changes in the approved form provisions by
amending paragraphs 10(1)(ca), 10(2)(b), 14(2)(b) and 15(3)(b) of
the ABN Act. These sections provide that the Registrar must
register you if conditions are met (section 10); that you must
notify the Registrar of changes to matters set out in the Register
(section 14); and that you are obliged to give the Registrar
information if requested (section 15).
Item 11 of Schedule 6 amends
the table in subsection 15(1) of the ABN Act in order to enable the
Registrar to ask an associate of an entity to give the Registrar
information that is relevant to confirming the associate s
identity. This also applies to new associates of the entity after
registration. This form is subject to the offence provision in
section 8C of the TAA 1953, if the associate fails to comply with
the request.
Item 17 of Schedule 6 amends
subsection 18(4) of the ABN Act in order to reflect the changes in
the approved form provisions allowing the entity to apply for
cancellation of its registration in the ABR, replacing the current
provision of applying for cancellation of registration in the form
approved by the Registrar.
Item 22 of Schedule 6 amends
existing section 21 of the ABN Act in order to allow an entity who
is dissatisfied with a decision of the Registrar to object using
the provisions set out in Part IVC of the TAA 1953. The decision
may involve refusing to register an entity, cancelling a
registration refusing to cancel a registration, and other types of
decisions set out in proposed subsection 21(2).
The provisions adopt the approved form provisions contained in
section 388-50 of Schedule 1 to the TAA 1953. The objection rights
extend to all of the previous types of decisions for which an
entity could seek review of the decision of the Registrar by
applying to the AAT.
Item 23 of Schedule 6 inserts
proposed paragraph 25(2)(aa) to require the
Registrar to enter in the ABR details about the entity s associates
that were requested in the approved form for registration in the
ABR. Under section 14, an entity has to advise the Registrar about
any change to its associates that are entered in the ABR.
In order to maintain the integrity of the ABR, item
27 of Schedule 6 inserts proposed
section 29A of the ABN Act to provide a mechanism to be
applied if the Registrar is satisfied that details entered in the
ABR are incorrect and the Registrar has access to details he or she
believes to be correct. Presently the Registrar has only limited
ability to update the ABR. The new provision will permit the
Registrar to amend the details entered in relation to the entity in
the ABR based upon his own information. If the information obtained
was subject to secrecy provisions that apply to a government
entity, the information would usually remain subject to those
secrecy provisions.
Item 31 of Schedule 6 inserts
the definition of the term reviewable ABN decision into section 41
of the ABN Act. It is expressed to have the same meaning as given
in section 21 of the ABN Act. The amendment will allow a
dissatisfied entity to seek a review of the decision from the AAT
or appeal to the Federal Court against the decision. These choices
result from the use of the provisions in Part IVC of the TAA 1953
mentioned above. The term reviewable ABN decision refers to certain
decisions made by the Registrar to which an entity has the right to
object.
Item 32 stipulates the amendments in
Schedule 6 commence on Royal Assent.
Schedule 6 also contains two consequential
amendment provisions in order to more appropriately identify the
authority for the use of the phrase address shown in the Register .
Item 33 amends paragraph 57(1)(a) of the
Product Grants and Benefits Administration Act 2000, by
adding the words under subsection 25(2) of the A New Tax System
(Australian Business Number) Act 1999 after the phrase address
shown in the Register . Item 34 amends paragraph
105-140(1)(a) in Schedule 1 to the TAA 1953 where the same words
included in the amendment under item 33 are also
inserted into this provision in the TAA 1953.
Part 2 of Schedule 6 amends
the privacy provisions of the ABN Act. Currently the Registrar acts
as the Multi-Agency Registration Authority as he or she already
identifies businesses that apply for an ABN (section 10 of the ABN
Act), but he or she was not able to use TFNs and other information
collected by the Commissioner of Taxation for the purposes of other
government agencies. Item 37 broadens the objects
clause of section 3 of the ABN Act to allow the Registrar to
register and maintain details of representatives of businesses for
the purpose of facilitating electronic dealings by those businesses
with government entities, and to use such information to register
representatives of businesses.
Item 39 inserts new section 9A
into the ABN Act in order to allow an entity already registered in
the ABR (or in the process of registering ) to apply to the
Registrar to register details about a nominated representative (who
must be an individual) to facilitate the applicant s electronic
dealings with government entities.
Item 40 inserts proposed section
10A, which provides that the Registrar must register the
applicant s representative if certain conditions are met. It sets
out those conditions, including the requirement that the Registrar
must be satisfied that the identity of both the nominating
individual and the representative are established. If the proposed
representative may also nominate further representatives, the
Registrar may request you or the proposed representative to give
the Registrar specified information or a specified document in
order that the Registrar may be satisfied that the identity of the
proposed representative is established: proposed subsection
10A(2).
Item 42 inserts proposed section
11A into the ABN Act to set out how the Registrar
registers a representative. The Registrar must enter certain
details - the name and email address of the representative, and the
date of effect of the registration in the ABR - in relation to the
entity. Item 55, however, inserts proposed
subsections 25(3) and 25(4) specifying certain entries
that must be entered in the ABR. These provisions add little to
proposed section 11A but make it clear what details must be entered
in the ABR. The difference is that proposed subsection
25(4) also requires the Registrar to enter the details
about a representative prescribed in the regulations.
Item 43 and Item 45 amend
subsections 13(1) and (2) of the ABN Act to make it clear that when
the Registrar refuses or delays to register an individual as a
representative of an entity under section 9 or 9A, the process in
section 13 governs the steps that may be taken by either party.
Item 47 of Schedule 6 amends
subsection 15(1) of the ABN Act which sets out a person s
obligation to give the Registrar information if requested. In order
to preserve the integrity of the ABR, the Registrar has the power
to request the entity, or a representative of the entity, to
provide the Registrar with information that is relevant to
confirming the identity of the representative, or information
relevant to the details entered in the ABR in relation to the
representative of the entity. Failure to provide such information
is subject to the offence provisions contained in section 8C of the
TAA 1953.
Item 48 inserts proposed subsection
18(1A) of the ABN Act with a provision authorising the
Registrar to cancel the registration of a representative of the
entity where she or he is satisfied that one of a number of
situations is satisfied regarding the invalidation of the
registration.
Item 49 revises existing paragraph 18(4)(b) of
the ABN Act to allow an entity to seek cancellation of the
registration of a representative of an entity by completing an
application in the approved form and forwarding it to the
Registrar.
Item 50 amends subsection 19(1) of the ABN Act
to allow the Registrar to reinstate the registration of a
representative in the ABR if the Registrar is satisfied that the
registration should not have been cancelled.
Item 51 repeals existing subsection 21(2) of
the ABN Act and substitutes a new provision (including a new table)
to reflect the allowable reviewable ABN decisions made under
several provisions.
Item 54 adds an offence provision in
proposed subsection 23(3) of the ABN Act to
discourage a person from identifying himself as being registered
under the ABN Act as a representative of an entity, when the person
is not the registered representative. The penalty for such offence
is two year imprisonment.
Item 56 repeals existing subsection 29A(1) and
inserts proposed paragraphs 29A(1)(a) and (b) into
the ABN Act to allow the Registrar to correct the Register if
information entered is incorrect and the correct details in
relation to an entity or to an entity s representative are
available.
Item 57 inserts proposed paragraph 30(3)(e)
into the ABN Act. Section 30 protects the confidentiality of
information that an entrusted person has obtained in the course of
official employment . The amendment permits the Registrar to
disclose the information concerning an individual, who is
registered, or has been registered as an entity s representative in
the Register, provided the disclosure is for the purpose of
facilitating the entity s dealings with government entities, or for
the purpose of maintaining details in the Register.
Schedule 7 Removing the Greenhouse Challenge
Plus Programme condition for fuel tax credits
Schedule 7 amends the Fuel Tax Act
2006 (the Fuel Tax Act) to remove the restriction that
businesses may not claim more than $3 million of fuel tax credits
in a financial year unless they are a member of the Greenhouse
Challenge Plus Programme (GCPP) or another program determined by
the Minister for the Environment, Heritage and the Arts (the
Environment Minister).
As stated in the Explanatory Memorandum, the GCPP provision in
Division 45 of the Fuel Tax Act was intended to encourage large
fuel users [to] monitor and take measures to reduce their carbon
emissions. It was intended to be integrated into the Government s
Carbon Pollution Reduction Scheme but will cease after 30 June 2009
and a suitable replacement program cannot be identified for the
purpose of the Fuel Tax Act.[25]
Without removing the GCPP condition from the Fuel Tax Act,
business will be unable to claim fuel tax credits in excess of $3
million in a financial year. Unless amendments are introduced, this
situation will essentially put government s policy intent of the
fuel tax credit system into serious question.[26]
In order to help businesses to continue enjoying the
entitlements of fuel tax credits, amendments have been introduced
to remove Division 45 in its entirety and also other references to
Division 45 of the Fuel Tax Act including minor amendments that are
required to Schedule 3 of the Fuel Tax Act (Consequential and
Transitional Provisions) Act 2006.
It is unnecessary to discuss the Main Provisions in detail.
Schedule 8 amends the ITAA 1997 to provide an
exemption from tax for the Clean-up and Restoration Grants paid to
small businesses and primary producers affected by the Victorian
bushfires.
On 18 February 2009, the Commonwealth and Victorian Governments
jointly announced a $51 million package to assist small businesses
and primary producers affected by the Victorian bushfires.[27] The package includes a
$5,000 Clean-up and Restoration Grant, which can be increased up to
$25,000 in cases where the applicant has suffered significant
damage.[28]
Although such grants are generally treated as assessable income
under the income tax law, the expenditure related to the carrying
on of a business funded by using this grant will be generally
deductible for taxation purposes.
Item 1 of Schedule 8 amends
the table in section 11-55 of the ITAA 1997 (being a list of
non-assessable non-exempt income provisions in the Act) to add the
Clean-up and Restoration Grants to the list of payments that are
non-assessable non-exempt income.
Item 2 inserts proposed section 59-50 to
provide that the Clean-up and Restoration Grants for primary
producers and small businesses are not assessable income and are
not exempt income either.
Items 3 and 4 include a
sunsetting clause to repeal the measures contained in items
1 and 2 with effect from 1 July 2011.
Item 5 stipulates that the measures in Schedule
8 will apply to grants paid in the 2008-09 and 2009-10 income
years.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2628 (Kali
Sanyal) or 6277 2795 (Morag Donaldson).
Kali Sanyal
Morag Donaldson
13 May 2009
Bills Digest Service
Parliamentary Library
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