Bills Digest no. 70 2015–16
PDF version [586KB]
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.
Leslie Nielson
Economics Section
27 January 2016
Contents
The Bills Digest at a
glance
Purpose
of the Bill
Structure
of the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position
of major interest groups
Financial
implications
Statement
of Compatibility with Human Rights
Key
issues and provisions
Concluding
comments
Date introduced: 3
December 2015
House: House of
Representatives
Portfolio: Treasury
Commencement: Sections
1 to 3 commence on Royal Assent. Schedule 1, Parts 1 to 4 and Schedule 2, Parts
1 and 2 commence on the day after Royal Assent. Schedule 1, Part 5 commences
immediately after the commencement of Schedule 2, Parts 1 and 2.
Schedule 2, Part 3 commences immediately after the
commencement of Schedule 3 to the Tax Laws Amendment (New Tax System for
Managed Investment Trusts) Act 2015. However, it does not commence at all
if that occurs at the same time, or before, the provisions covered by Schedule
2, Parts 1 and 2 of this Bill commence.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
Purpose
The purpose of this Bill is to amend the Income Tax Assessment
Act 1997 and the Taxation Administration
Act 1953 to:
- change
the capital gains tax (CGT) treatment of the sale and purchase of business
involving ‘earnout’ rights and
- introduce
a new CGT collection mechanism, which will require a person or entity who buys
certain Australian assets valued at $2 million or more, from a foreign resident
to withhold and pay to the Australian Taxation Office 10 per cent of the
purchase price. This proposed measure aims to improve the collection of
outstanding CGT liabilities arising from such transactions.
Reaction
The Bill has received lukewarm support from industry (and
some outright opposition) due to the considerable administrative difficulties
that the proposed amendments may give rise to.
Parliamentary Support
The proposed measures had their origin in the 2010–11 Budget
and as such were initiatives of the then Labor Government. It may be unlikely
that the current Labor opposition would oppose these measures.
Dates of Effect
The changes to the CGT treatment of earnout rights is to
apply to transactions concluded on or after 24 April 2015 (the day after
the release of draft legislation). Protections for transactions concluded
before that date, in reliance on previous policy announcements, also apply.
The proposed withholding tax measures are to take effect
from 1 July 2016.
The purpose of the Tax and Superannuation Laws Amendment
(2015 Measures No. 6) Bill 2015 (the Bill) is to amend the Income Tax Assessment
Act 1997 (ITAA 1997) and the Taxation Administration
Act 1953 (TAA 1953) to:
- change
the capital gains tax (CGT) treatment of the sale and purchase of business
involving ‘earnout’ rights[1]
so as to treat all payments under a qualifying earnout arrangement as relating
or linked to the underlying business asset or assets and
- introduce
a new CGT collection mechanism, which will require a person or entity who buys certain
Australian assets valued at $2 million or more, from a foreign resident to
withhold and pay to the Australian Taxation Office 10 per cent of the purchase
price. This proposed measure aims to improve the collection of outstanding CGT
liabilities arising from such transactions.
Consequential or contingent amendments are also made to:
The Bill is divided into two schedules:
- Schedule
1 deals with the CGT treatment of business sales involving earnout rights and
- Schedule
2 deals with the proposed withholding arrangements on CGT liabilities arising
from the sale of taxable Australia property by foreign residents.
What is an earnout arrangement?
An earnout arrangement is a right to future financial
benefits linked to the economic performance of the business or an asset after
the sale of a business. There are two types of earnout arrangement: standard
and reverse. A standard earnout arrangement has been defined as follows:
A standard earnout right usually requires the purchaser [of a
business asset] to pay to the seller certain additional consideration,
determined on the basis of a contingency such as the satisfaction of defined
performance thresholds within a specified time period post-sale.[3]
While a reverse earnout arrangement is one where:
...the seller accepts a nominated sum by way of consideration,
but undertakes to pay an amount or amounts to the buyer calculated by reference
to the earnings generated by the asset during a specified period after
completion of the sale.[4]
When are earnout arrangements used
and what are their advantages?
Earnout arrangements are a practical, useful and common business
tool in circumstances where there is uncertainty in valuing a business for the
purpose of its sale. The difficulty in parties agreeing on or reasonably
determining proper market value of a business occurs where the value is largely
dependent upon uncertain future cash flows. In these circumstances, earnout
arrangements also assist in valuing intangible assets of a business, such as
‘goodwill’, where their separate valuation prior to the sale of a business is
problematic.[5]
Are they used in Australia and is
their use growing?
A 2010 Treasury paper stated that earnout arrangements
were a common and efficient way of structuring the sale of an asset where there
was uncertainty about its value.[6]
A more recent article has described these arrangements as ‘very common’.[7]
The most recent Taxation Statistics show the following
information on completed earnout arrangements for the 2012-13 financial year:
Table 1: Earnout Arrangements from Taxation Statistics:
2012–13
Entity
|
Individuals
|
Companies
|
Funds
|
Number of Transactions
|
65 |
45 |
5 |
Total Capital Proceeds ($m)
|
83.7 |
65.9 |
0.8 |
Transactions producing a taxable capital gain
|
55 |
40 |
5 |
Taxable capital gain ($m)
|
23.3 |
19.6 |
0.24 |
Source: ATO Taxation Statistics
[8]
The statistics in Table 1 suggest that individuals, most
likely selling small and medium sized businesses, are the most prevalent users
of these arrangements. Unfortunately, the Taxation Statistics do not have
comparable prior year information that allows a judgement on whether the use of
these arrangements is growing.
Current treatment under tax law—why
are these amendments being proposed?
In the absence of legislation dealing specifically with
earnout rights, normal CGT rules apply. Thus the current tax treatment of both
standard and reverse earnout rights is set out in Draft Taxation Ruling TR
2007/D10.[9]
Mostly, each earnout right is treated as property provided by a purchaser to a
vendor at the time the earnout arrangement is entered into, thereby giving rise
to a taxing event for a vendor where no cash exchanged hands. Thus each earnout
right is treated as a separate CGT asset, depending on the circumstances. That
is, the earnout rights are treated as CGT assets separate and distinct from the
original purchase transaction. This then requires the earnout right to be
valued and it may form part of the sale proceeds (where the right is provided
by the buyer). The expiration of the right will then trigger a separate CGT
event. Also, certain CGT concessions that would otherwise apply to the sale of
business assets may not apply to this separate CGT event. In some instances however,
the total arrangement, including earnout rights, may be considered as a single
CGT asset, with the exact and individual circumstances of each set of
arrangements determining which is the case. The practical operation of this
ruling therefore gave rise to a confusing and complex basis on which to assess
such arrangements for tax purposes.
Specific problems have arisen in the application of TR
2007/D10:
- in
some circumstances a CGT liability/event for the seller can arise where no
actual consideration had been received
- where
a capital gain accrues to the seller, through the value of the earnout right
being less than the payments actually received, there is no mechanism for the
CGT discount (i.e. the 50 per cent discount) to be applied to that capital gain
where the earnout right lasts less than 12 months. Nor does the small business
active asset concession[10]
apply to earnout rights
- where
a capital loss has been experienced by the seller, due to the market value of
the earnout right being higher than the cash received, there is no mechanism to
offset that loss against the capital gain accrued in the original transaction
and
- for
the buyer, there are no CGT consequences for the amount paid out under an
earnout arrangement. Such amounts paid out are not added to the asset’s cost
base, thereby potentially increasing the CGT liability if and when the asset is
later sold by the buyer.[11]
Earnout Arrangements—Announcement
and policy development
In May 2010 the then Labor Government announced that
legislation would be introduced to apply look-through CGT treatment to
qualifying earnout arrangements in the sale of business assets.[12]
Treasury released a discussion paper on the topic at the same time and received
submissions from interested parties.[13]
This measure was included in the 2010–11 Budget, but legislation was not later
introduced into parliament.[14]
In 2013 the Coalition Government decided to proceed with this proposed change.[15]
Treasury released draft legislation on 23 April 2015 seeking submissions
from interested parties.[16]
Some of these submissions have been released by the parties themselves, but not
by Treasury.[17]
Earnout Arrangements—Proposed treatment
The proposed measure disregards a ‘separate assets’ approach
and adopts a look-through but only for particular earnout rights for CGT
purposes.[18]
Thus the application of the look-through approach is much narrower in its
capture than that which was discussed in the Treasury discussion paper. The
Explanatory Memorandum states:
A look-through earnout right is a right to future financial
benefits which are not reasonably ascertainable at the time the right is
created. The right must be created under an arrangement involving the disposal
of a CGT asset that is an active asset of the seller, and the financial
benefits under the right must be contingent on and reasonably related to the
future economic performance of the asset (or a related business). [19]
A five year restriction also applies to the payments made
under the right. The parties must also deal with each other at arm’s length.[20]
The ATO has summarised the proposed measure as one where,
for eligible earnouts entered into on or after 23 April 2015:
- the
capital gains and losses arising from eligible earnout rights will no longer be
recognised separately (as was the position under the separate assets approach) thus
they will be disregarded and
- the
value of any financial benefit provided or received under a look through
earnout right (LTER) is only included in and will thus affect either the
capital proceeds arising from the disposal (for the seller) or the cost base of
the acquisition (for the buyer) of the underlying asset to which the earnout
arrangement relates.[21]
In practical terms this means:
- a
separate valuation of the LTER will not be required
- the
expiration of the LTER will in effect not give rise to a separate CGT event
- only
a provisional capital gain solely consisting of the fixed amount of consideration
received will be determined on the day of the sale (as the sale proceeds on
that day will not include the value of the earnout rights). Then in the future,
when an earnout right is realised as a financial gain because contingent
economic performance thresholds of the earnout are met, a revised capital gain
will be have to be calculated (because the earnouts will affect the sale
proceeds of the original transaction).[22]
Thus the amount of the sale proceeds accompanying capital
gain need to be updated every year the earnout agreement is in existence. The
key benefit of this approach is that it enables, in a defined circumstance, the
‘deferral of the payment of the capital gain on the eligible earnout rights by
disregarding the value of the earnout right when working out the capital
proceeds from the sale transaction at the date of sale.’[23]
That defined circumstance is one in which there is sale of a business ‘where a
genuine disagreement about the value of the business going forward is resolved
by at least one of the parties agreeing to provided future financial benefits
linked to the performance of the business’.[24]
This enables the ‘treatment of a subsequent payment received by the seller
because of the earnout right as part of the original capital proceeds—which may
be subject to the small business CGT concessions.’[25]
The proposed changes apply to look-through earnout rights
created on or after 24 April 2015. Transitional protection is provided to
taxpayers that have reasonably and in good faith anticipated the changes to the
tax law in this area as a result of the announcement by the former Rudd Government.[26]
Current tax law on capital gains
arising from sale of Australian property by foreign residents
Under Subdivision 855-A ITAA 1997 a foreign resident
can disregard a capital gain or loss unless the relevant CGT asset is a direct
or indirect interest in taxable Australian property, or relates to a business
carried on by the foreign resident through a permanent establishment in
Australia.[27]
Where a foreign resident makes a capital gain on the sale of
taxable Australian property, they are required to pay normal CGT. The Explanatory
Memorandum notes that this particular requirement has a very low compliance rate;
however, there seems to be a lack of explanation as to why this tax collection
problem has not been addressed earlier by the Parliament.[28]
Taxable Australian property includes:
- a
direct or indirect interest in taxable Australian real property
- under
section 855-20 ITAA 1997 this can include real property situated in
Australia (including a lease of land, if the land is situated in Australia) or
a mining, quarrying or prospecting right (to the extent that the right is not
real property), if the minerals, petroleum or quarry materials are situated in
Australia
- an
asset used in carrying on a business through a permanent establishment in
Australia and
- any
rights or options in respect of these assets.[29]
Withholding tax on Australian
property sales by foreign residents—Proposed amendments
Schedule 2 of the Bill seeks to establish a withholding tax
regime. Under this regime, where a foreign resident sells taxable Australian
property the purchaser is responsible for the payment of this withholding tax
at a rate of 10 per cent of the purchase price. The foreign resident would
still be liable for the balance of any unpaid CGT arising from the sale of this
property.
This proposal does not apply to:
- property
sales by a foreign resident worth less than $2 million
- property
that is used in carrying on a business through an Australian permanent
establishment[30]
- shares
listed on a stock exchange or
- a
situation where a withholding tax obligation already exists.
Withholding tax on Australian
property sales by foreign residents—Policy announcement and development
The proposed amendments were announced in the 2013–14
budget. The following process then occurred:
- the
Abbott Government announced that it would proceed with this proposed change, which
was originally put forward by the former Rudd Government[31]
- Treasury
released draft legislation in May 2014 and invited submissions[32]
- a
Treasury discussion paper was released in October 2014 and further comment from
interested parties invited[33]
and
- draft
legislation was released by Treasury in July 2015 and again, submissions were
invited.[34]
Some of these latter submissions have been released by the
parties who made them.
The Senate Selection of Bills Committee has deferred
consideration of this particular Bill until its first meeting in 2016.[35]
At the time of writing this Digest the Senate Scrutiny of
Bills Committee had not commented on the Bill.
As at the date of writing this Digest neither Labor, the
Australian Greens nor independent members of parliament have expressed a
position on this particular Bill. However, given that the proposed measures
were first put forward by former Labor Governments it may be unlikely that they
would be now opposed by the current Labor Opposition.
Earnout rights
The most recent set of comments by interested parties on
the proposed amendments in relation to the CGT treatment of earnout rights were
given in relation to the draft legislation released by Treasury on 23 April
2015. Generally, published comments on this draft legislation were concerned
about various detailed aspects of the proposed amendments. Only one published
response gave general support for the proposed changes, with one opposing the
introduction of the proposed amendments in the draft legislation.[36]
Treasury has responded to these concerns in a ‘Summary of Issues’ document as
well as changes in the final legislation submitted to Parliament.[37]
When the proposal was first made in 2010 one commentator
noted that it would provide clarity in a confused tax practice area.[38]
Withholding tax on Australian
property sales by foreign residents
The main reaction by interested parties to this particular
proposal has been made via comments on the above mentioned draft legislation:
- some
submissions opposed the proposed arrangements on grounds of complexity and
additional administrative arrangements not being justified by the revenue
leakage that the proposal was meant to stem[39]
- there
are concerns on the potentially wide range of transactions to which the
proposed amendments apply and[40]
- two
submissions supported the introduction of the proposed regime, but made a
significant number of technical comments on the Exposure Draft legislation.[41]
Reportedly, the property industry had a negative reaction
to the proposed measure announced in the 2013–14 budget citing concerns that
the proposed change would ‘drive out foreign capital’.[42]
Other concerns were that this particular change would cause confusion to
foreign investors and leave Australia out of step with other countries’
arrangements, notably the United Kingdom.[43]
The Explanatory Memorandum notes that:
- the
proposed capital gains tax treatment of earnout rights will cost the federal
budget some $20 million between 2015–16 and 2018–19 and
- the
proposed imposition of a withholding tax on purchases of property from foreign
residents will increase revenue by $330 million over the forward estimates
period.[44]
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. The
Government considers that the Bill is compatible.[45]
At the time of writing this Bills Digest, the
Parliamentary Joint Committee on Human Rights had not commented on the Bill.
Schedule 1—Earnout rights
Part 1
Item 1 of Schedule 1 inserts proposed
section 112-36 into the ITAA 1997. This new section achieves several
outcomes including:
- exempting
any look-through earnout rights (defined below) from the CGT consequences of
the transaction (proposed subsection 112-36(1))
- allowing
either party in the transaction to revise their CGT self-assessment as earnout
rights are concluded (proposed subsection 112-36(2))
- allowing
the Commissioner of Taxation (the Commissioner) to amend such assessments (proposed
subsections 112-36(3) and (4)) and
- allowing
objections within 60 days to the Commissioner’s assessment (even if the
taxpayer would otherwise be out of time) where a taxpayer is dissatisfied with
an assessment as the Commissioner has not made an amendment due to a financial
benefit provided or received under an earnout right (proposed subsection 112-36(5)).
Some submissions were concerned that these provisions are
restricted to disposal of a CGT active asset that causes CGT event A1 to occur.[46] Proposed sections 116‑120
(item 3) and 118-565 (item 4) also depend on CGT Event A1,
and no other CGT event, occurring.
In section 104-5 of the ITAA 1997, CGT Event A1
refers to the disposal of an asset. One submission to Treasury suggested that
CGT events B1, D1, E2 and K6 should also be included in the operation of these
new provisions, so that the full range of relevant CGT events related to these
transactions could be covered by the proposed legislation.[47]
CGT events C2 (cancellation, surrender and similar endings) and D1 (creating
contractual rights) are included in these amendments by proposed section
118-575.
The remaining CGT events (B1, E2 and K6) may indeed occur
at the same time as event A1, but they do not, of themselves, involve the
actual sale of a CGT asset. If these latter CGT events were included in the
operation of the new provisions a tax concession may be conferred where there
was no actual sale of a business or related asset.
Under the proposed provision, every time an amount is paid
or received under an earnout arrangement, prior year’s tax returns have to be
resubmitted and tax liabilities readjusted. The Law Council of Australia has
observed that this is time consuming and expensive.[48]
Of course this is true, but it is difficult to outline an alternative given the
uncertain and contingent nature of the payments in question, save exempting
them from tax altogether. The Tax Institute has noted that the requirement for
recasting CGT tax returns during the life of the earnout arrangements is an
acceptable trade off to more complex solutions.[49]
Item 4 inserts proposed section 118-565 into
the ITAA 1997. Proposed subsection 118-565(1) provides that a ‘look-through
earnout right’ (LTER) exists if all the following conditions are met:
- the
right is a right to a future financial benefit that is not reasonably
ascertainable at the time the right is created
- the
right is created where an active GST asset is disposed of, that is CGT
Event A1 occurs
- the
financial benefit is provided no later than five years after the CGT Event
happens (this period has been increased from four years in the draft
legislation)
- the
financial benefits under a right must be contingent on and reasonably related
to the future economic performance of the CGT asset or a business for which it
is reasonably expected that the CGT asset will be an ‘active asset’
- the
value of the financial benefits reasonably relates to that economic performance
- the
value of the earnout payment must not be disproportionate to the benefits that
could have been reasonably expected to result from the performance of the asset
to which they are linked and
- the
parties are dealing with each other at arm’s length.
Proposed subsection 118-565(4) provides that a
right to receive a financial benefit for ending a LTER is also a LTER if the
benefits provided for ending the LTER are certain. (In other words, an LTER
will also exist if all the conditions set out in proposed subsection 118-565(1)
are met and a right is exercised to end the LTER in exchange for a definite financial
benefit.)
An ‘active asset’ is defined in section 152-40 ITAA
1997 as an asset (whether the asset is tangible or intangible) owned by the
taxpayer that is used, or held ready for use, in the course of carrying on a business
that is carried on (whether alone or in partnership) by the taxpayer or their
affiliate(s) or an entity connected with the taxpayer. The Explanatory
Memorandum points out that ‘assets that are not active assets are not
sufficiently linked to the conduct of a business to fall within the intended
scope of the concession for earnouts’.[50]
The current definition of ‘active asset’ would problematically exclude certain
assets. For example, earnout rights framed around the satisfaction of
non-economic performance criteria such as payment contingent on discovery of the
existence or value of mineral resources, will not satisfy this requirement. Proposed
section 118-570 (item 4) provides for additional ways in which
an asset can be an active asset for the purposes of applying the above
definition.
The text of proposed section 118-565 in the draft
legislation is very similar to that put to Parliament in the Bill. Thus the comments
on this proposed section in the draft legislation are very relevant to the
proposed legislation now before Parliament. The outstanding issues appear to be:
- the
proposed LTER definition is too narrow, though submissions did not provide
details of earnout arrangements that would fall outside the scope of this
definition[51]
- the
proposed definition of an LTER is very complex and will require specialist
assistance to apply. One submission suggests that the definition of an earnout
arrangement in existing subsection 230-460(13) ITAA 1997, suitably
modified, be used instead.[52]
This subsection (which comes from that portion of the ITAA 1997 that
applies to the taxation of financial arrangements) currently reads:
Proceeds from certain business sales
(13) A
right to receive, or an obligation to provide, financial benefits arising from
the sale of:
(a) a business; or
(b) shares in a company that
operates a business; or
(c) interests in a trust that
operates a business;
is the subject of an exception if
the amounts, or the values, of those benefits are contingent only on the
economic performance of the business after the sale.[53]
- proposed
subsection 118-565(2) specifies that an LTER arrangement does not meet, and
is taken never to have met, the timing condition in proposed subsection
118-565(1) if:
- the
arrangement includes an option to extend or renew
- the
parties to the arrangement vary the arrangement or
- those
parties enter into another arrangement over the relevant CGT assets
so that financial benefits could
be, or are, provided over a total period of more than five years after the end
of the income year in which the CGT event occurs.
The Explanatory Memorandum notes:
This requirement is not breached
simply because one party or another may be late in providing a financial
benefit under the look-through right, even if the other party tolerates this
lateness.[54]
However, one submitter on the
exposure draft of the legislation expressed concern that the situation may be
different if a party agreed to a payment being deferred so that it occurred
outside the five-year timeframe. That is, such an agreement could fall within
proposed paragraph 118-565(2)(b) and therefore result in the arrangement ceasing
to meet the LTER definition, whereas if the late payment was made without
permission, the arrangement would remain an LTER. Thus two opposing outcomes
could apply to the same circumstance (a payment received after the five-year
period). The submitter considered that losing the benefits of the proposed amendments
may be unfair in these circumstances[55]
- there
may be difficulty in applying these provisions to situations where the business
being sold comprises of both active and non-active CGT assets, or an asset that
may not be a CGT asset at all (for example specific commercial and technical
information)[56]
and
- the
Tax Institute contends that the criteria for benefits paid being contingent on
the economic performance in proposed paragraph 118-565(1)(f) are too
narrow, and there will be many arrangements excluded for no obvious policy
rationale[57]
- the
Law Council of Australia provides an example of a situation where this could
occur, as follows:
When interpreting the requirement in paragraph (f) of the
definition of look through earnout right in [proposed] section 118-565, do the financial
benefits have to be contingent on the economic performance of either
solely the sold asset (in item (i)) or in a business which uses the CGT
asset and nothing else (in item (ii))? That is, what reading is to be taken of
paragraph (f) where an asset is disposed and an earnout is to be calculated by
reference to the asset sold and something else? This will be of particular
relevance where the asset (which could include shares in a company) are sold
into a broader group structure in which the acquirer sits and the earnout is to
be calculated on the performance of the acquirer’s broader group. This will be
common in practice as acquisitions are often undertaken with the object of
obtaining synergies post acquisition with other operations conducted by an
acquirer.[58]
Generally, Treasury’s standard answer to these issues is
that they are seeking changes outside the announced intention of the policy in
2010.[59]
To deviate too much from the original stated policy intention may adversely
affect earnout arrangements that have been entered into since that time relying
on the policy announcement in that year. On the other hand, if improvements may
be made without adversely affecting already established arrangements, then
Parliament’s consideration of this Bill is the appropriate opportunity for this
to occur.
As noted above, proposed section 118-570 (item 4)
specifies additional ways in which an asset may be an active CGT asset for the
purposes of these amendments. Some commentators have complained that the draft
legislation did not allow for interests in foreign entities to be active assets
for these purposes. [60]
Proposed subsection 118-570 allows for this to occur.
Under proposed section 118-570 an asset may be an
active asset of an entity for the purposes of these amendments if all the
following are satisfied:
- the
entity owns the asset at the relevant time (presumably the point of sale)
- the
asset is either a share in a company or an interest in a trust
- the
entity is either a CGT concession stakeholder[61]
of the company in question or, if the entity is not an individual, it has a
small business participation percentage[62]
in the company or trust of at least 20 per cent
- the
company or trust has been carrying on a business since the start of the most
recent income year
- the
company or trust is not a subsidiary member of a consolidated group and
- the
assessable income of the company in the most recent income year was greater
than nil and at least 80 per cent of that income was not produced by
financial instruments and assets (that is, it was not passive investment income).
This definition excludes companies that derive their
income from holding financial assets, which is they are not ‘bricks and mortar’
companies.[63]
This is consistent with the exclusion of these companies from the definition of
active CGT assets in existing subsection 152-40(4) ITAA 1997. It has
been argued that this exclusion would also preclude companies whose income is derived
from certain software licencing companies whose licence fees may qualify as
royalties.[64]
Whether this exclusion is desirable is a matter for Parliament to decide.
The above requirement for the entity being sold to have at
least a 20 per cent small business participation percentage has been seen as
creating some potential problems for a buyer in certain circumstances, as
follows:
The minimum 20% interest holding requirement, as currently
drafted, will create considerable problems, particularly for a buyer. In many
closely held companies, there will likely be multiple shareholders with
interests exceeding 20%, but other senior employees with material shareholdings
that are below 20%. The way the provisions are currently drafted, a buyer of
100% of the shares in the company would have to apply the new rules to the
acquisition of the majority shareholders’ interests, but would be left in the
current problematic situation for the purchase of the minority shareholders’ interests.
There should be a ‘drag along’ rule, by which, as long as one accepting vendor
qualifies under the ‘look-through earnout right’ rules, then all other
accepting vendors under the relevant arrangement are also treated as having a
‘look-through earnout right’.[65]
It is notable that Parliament has recently passed an amendment
that encourages employee share ownership in smaller companies, so it is more
likely that the above situation would arise as time goes on.[66]
Again, whether the above suggested ‘drag along rule’ is adopted is a matter for
Parliament.
Part 2
This part deals with ensuring that the various small
business CGT concessions are available to those receiving payments via
look-through earnout rights when a CGT asset is sold. Briefly, these
concessions are available if the following are satisfied:
- the
entity must be a small business entity or a partner in a partnership that is a
small business entity, or the net value of assets that the entity and related entities
own must not exceed $6 million
- the
CGT asset must be an active asset and
- if
the asset is a share or interest in a trust, there must be a CGT concession
stakeholder just before the CGT event, and the entity claiming the concession
must be a CGT concession stakeholder in the company or trust or CGT concession
stakeholders in the company or trust must have a small business participation
percentage in the entity of at least 90 per cent.[67]
Briefly, the four small business CGT reliefs available
are:
- an
exemption from CGT if a taxpayer has held an active CGT asset for 15 years or
more and retires or is permanently incapacitated[68]
- if
held for a lesser period the first $500,000 of a capital gain can be
disregarded upon retirement[69]
- when
using the proceeds of a sale to purchase another asset a taxpayer can defer the
capital gain raised by the sale of the first asset[70]
and
- CGT
is not levied where the first $1.4 million (in 2015–16) of any sale proceeds
are contributed to a superannuation fund.[71]
There have been some comments suggesting that the above-mentioned
$6 million limit is too low where the amounts to be received via a set of
look-through earnout arrangements is uncertain. That is, this $6 million limit
could be breached inadvertently, if the asset being sold has an economic
performance above expectations.[72]
Part 4
Item 38 applies the amendments in Schedule 1 Parts
1 to 3 in relation to look-through earnout rights created from 24
April 2015. This is the day after the draft legislation for this Bill was
released. Item 39 protects taxpayers who have made arrangements based on
previously announced policy (i.e. the May 2010 announcement) from adverse
assessment under the proposed rules.
Schedule 2—Foreign resident capital
gains withholding payments
The Explanatory Memorandum states:
Withholding taxes are amounts that a person (the payer)
withholds from a payment they make to another person (the recipient).
Withholding taxes represent the (sometimes estimated) tax liability of the
recipient. Withheld amounts are paid to the Commissioner. There is currently no
specific withholding regime for capital gains and related property
transactions.[73]
Part 1
Item 1 of Schedule 2 inserts proposed
subdivision 14-D into Schedule 1 of the Taxation Administration Act 1953
(TAA 1953).[74]
Proposed section 14-200 imposes an obligation on the purchaser of
certain property to make a payment to the Commissioner equal to 10 per cent of
the first element of the cost base (normally the purchase price) where proposed
section 14-210 applies (see below). This obligation applies where at least
one of the vendors is a foreign resident for taxation purposes (see proposed
paragraph 14-200(1)(b)).
There are various exceptions that are dealt with later, but proposed
subsection 14-200(4) prevents this obligation applying if the amount
otherwise payable is nil. It is not clear that the purchaser would be in a
position to know if any CGT was payable as a result of the transaction and the
Explanatory Memorandum is silent on this matter.
Proposed section 14-210 requires the purchaser to
determine whether the vendor is a relevant foreign resident. A foreign resident
for tax purposes according, to section 6 ITAA 1936, may include:
- a
person living outside Australia or
- a
person who is present in Australia for less than half the year and has an
address outside Australia and does not intend to take up residence in Australia.
Beyond these seemingly simple categories the Explanatory
Memorandum notes that the tax residency of an entity may be a complex legal and
factual question and it may be difficult for a purchaser to reasonably decide
this matter.[75]
Proposed subsections 14-210(2) and (3) provide two additional
ways that this question can be resolved:
- the
vendor gives the purchaser a certificate drawn up by the Commissioner under proposed
section 14-220 or
- the
vendor declares that it is an Australia tax resident under proposed section
14-225 and the purchaser does not know that the declaration is false.
Otherwise, proposed section 14-210 applies if:
- the
purchaser knows that at least one of the vendors is a foreign resident
- the
purchaser reasonably believes that at least one of the vendors is a foreign
resident or
- the
purchaser does not reasonably believe that the entity is a foreign resident ,
but
- at
least one of the vendors has an address outside Australia or
- the
purchaser is authorised to provide a financial benefit to a place outside
Australia or
- at
least one of the vendors has a connection outside Australia specified in
regulations.
The potential for the purchaser to make a mistake in
applying these requirements is great. The purchaser may not be in a position to
apply these tests reliably where they are dealing through intermediaries, such
as estate agents and legal and financial firms. As such, a higher standard of care
is required when entering into these transactions, with associated higher
costs.
Proposed section 14-215 provides a number of
exclusions from this obligation, amongst which is if just after the transaction,
the market value is less than $2 million. It is important to note that this
exclusion is not based on the purchase price. An asset’s market value may well
be above $2 million immediately after the transaction, through no fault of the
purchaser, but its purchase price was less than this amount. This exclusion may
introduce an element of uncertainty in applying these provisions, especially
during periods of rapid asset price inflation.
In his second reading speech, the Assistant Minister to
the Treasurer, Alex Hawke states:
To ensure that this measure is appropriately targeted at
those areas where revenue is at greatest risk, and minimises the impact on
other property transactions, the measure does not apply to direct real property
transactions below $2 million.[76]
It is unclear as to what is meant by ‘areas where revenue
is at greatest risk’, if it is the case that revenue collection and compliance
with the payment of CGT by foreign residents has been poor across the board.
Given the resources the ATO spends on auditing Australian taxpayers, a question
may arise as to why $2 million was chosen as the threshold or trigger
amount and not some lower amount so as to maximise revenue collection. The
Explanatory Memorandum states:
The purpose of this exclusion is to minimise compliance
costs, alleviating the need for purchasers to undertake the preliminary
compliance obligation of determining the residency status of the vendor. This
exclusion will ensure that the amendments are clearly inapplicable to most
residential property sales.[77]
Part 2
Item 30 applies amendment made by Parts 1
and 2 of Schedule 2 to acquisitions made on or after 1 July 2016.
Several submissions on the draft legislation noted that complex administrative
systems would have to be established and an education campaign undertaken for a
smooth introduction of the proposed changes. Consequently, a couple of
submissions proposed a later application date of 1 July 2017.[78]
The forgoing has not been a complete guide to the
administrative difficulties that the two proposed measures may raise. One
response may be further alteration of the legislation. Perhaps a more practical
response would be to ensure that the Australian Taxation Office provides
sufficient additional explanatory material, taxation rulings or administrative
guides to meet the legal and accounting industries’ outstanding concerns.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. In
simple terms an earnout right or arrangement is one in which sale or purchase
of a business or business assets involves the calculation and payment (usually
to the seller) of additional consideration contingent on the business being
sold, meeting or exceeding (within a given time period) certain predetermined
performance targets which are linked to the performance of the business or
assets after sale.
[2]. Parliament
of Australia, ‘Tax
Laws Amendment (New Tax System for Managed Investment Trusts) Bill 2015
homepage’, Australian Parliament website, accessed 22 January 2016.
[3]. N
Santinon, L Efthivoulou and C Clarke, ‘Tax
law: Earnout rights: Dealing with certain uncertainty?’, Bulletin (Law Society of South
Australia), 37(7), Aug 2015, p. 36, Informit database, accessed 4 January
2016.
[4]. C
Evans, ‘Yearning
for earnout certainty’, Tax Specialist, 11(5), June 2008, p. 294,
Informit database, accessed 4 January 2016.
[5]. Ibid.,
p. 305; N Santinon et al., op. cit., p. 36.
[6]. Treasury,
Capital
gains tax treatment of earnout arrangements, proposals paper, Treasury,
Canberra, May 2010, p. vi, accessed 4 January 2016.
[7]. A
Varrasso, ‘Earnout
arrangements: finally, some clarity on tax’, Wolters Kluwer Tax Chat, blog,
5 May 2015, accessed 4 January 2016.
[8]. Australian
Taxation Office (ATO), ‘Capital
gains tax: Selected items, by entity, 2012–13 income year’, Taxation statistics
2012–13, data.gov.au website, 8 April 2015, accessed 4 January 2016. .
[9]. ATO,
Income tax: capital
gains: capital gains tax consequences of earnout arrangements, Draft
taxation ruling, TR 2007/D10, 17 October 2007, accessed 4 January 2016.
[10]. An
‘active asset’ is an asset that is used or held ready for use in the course of
carrying on the business, and can include goodwill. A seller can reduce the
capital gain on an active asset by 50 per cent if they have owned the asset for
12 months or more.
[11]. N
Santinon, et al., op. cit.
[12]. N
Sherry (Assistant Treasurer), Look-through
treatment for earnout arrangements to simplify sale of business assets,
media release, 12 May 2010, accessed 5 January 2016.
[13]. Treasury,
‘Capital
gains tax treatment of earnout arrangements’, op. cit.
[14]. Australian
Government, Budget
measures: budget paper no. 2: 2010–11, 2010, p. 16, accessed 5 January
2016.
[15]. A
Sinodinos (Assistant Treasurer), Integrity
restored to Australia’s taxation system, media release, 14 December
2013, accessed 5 January 2016.
[16]. Treasury,
Tax and Superannuation Laws Amendment (2015 Measures No. 4) Bill 2015: CGT
treatment of earnout rights: Exposure
Draft, [23 April 2015], accessed 5 January 2016.
[17]. See
for example: The Australian Private Equity and Venture Capital Association
Limited (AVCAL), Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, May 2015,
accessed 5 January 2016.
[18]. Schedule
1, Item 4, proposed sections 118-560 and 118-565, ITAA 1997.
[19]. Explanatory
Memorandum, Tax and Superannuation Laws Amendment (2015 Measures No. 6)
Bill 2015, p. 11, accessed 5 January 2016.
[20]. Ibid,
p. 20 and 22.
[21]. ATO,
‘CGT:
Look-through treatment for earnout rights’, website, 17 December 2015,
accessed 27 January 2016.
[22]. EdwardsMarshall,
‘Proposed
‘look-through’ approach for earnouts’, EdwardsMarshall website, 1 October
2015, accessed 18 January 2016.
[23]. Ibid.
[24]. Explanatory
Memorandum, p. 12.
[25]. EdwardsMarshall,
op. cit.
[26]. ATO,
‘CGT:
Look-through treatment for earnout rights’, op. cit.
[27]. Income Tax Assessment
Act 1997, accessed 5 January 2016.
[28]. Explanatory
Memorandum, op. cit., p. 44.
[29]. Ibid.
[30]. Explanatory
Memorandum, op. cit., p. 49.
[31]. A
Sinodinos (Assistant Treasurer), Integrity
restored to Australia’s taxation system, media release, 14 December
2013, accessed 5 January 2016.
[32]. Treasury,
Tax and Superannuation Laws Amendment (2014 Measures No. 3) Bill 2014: foreign
resident CGT integrity measures: Exposure
Draft, [13 May 2014], accessed 5 January 2016.
[33]. Treasury,
Non-final
withholding tax on transactions involving taxable Australian property,
discussion paper, The Treasury, Canberra, 31 October 2014, accessed 5
January 2016.
[34]. Treasury,
Tax and Superannuation Laws Amendment (2015 Measures No. 5) Bill 2015: Foreign
resident capital gains withholding payments: Exposure
Draft, [8 July 2015];
B Billson (Minister for Small Business), Release
of draft legislation for the foreign resident capital gains withholding tax
measure, media release, 8 July 2015, both accessed 5 January 2016.
[35]. Senate
Selection of Bills Committee, Report,
16, 2015, The Senate, 3 December 2015, p. 4, accessed 5 January 2016.
[36]. See
Chartered Accountants Australia and New Zealand, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft,
14 September 2015;
The Tax Institute, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, 26 May
2015;
Law Council of Australia, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, 22
May 2015;
Pitcher Partners, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, 25 May
2015 (this submission opposed the Exposure Draft’s provision on the grounds of
complexity);
BDO (Accountancy Group), Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, 21 May
2015 (this submission gave general, if qualified, support for the proposed
amendments in the Exposure Draft). All accessed 5 January 2016.
[37]. Treasury,
Tax and Superannuation Laws Amendment (2015 Measures No. 4) Bill 2015: CGT
treatment of earnout rights: Exposure
Draft, op. cit.
[38]. K
Burgess, ‘Capital
gains changes create confusion’, Australian Financial Review, 13 May
2010, p. 25, accessed 6 January 2016.
[39]. Law
Society of New South Wales, Submission
to Treasury, Foreign resident capital gains withholding payments: Exposure
Draft, 11 August 2015; Property Council of Australia, Submission
to Treasury, Foreign resident capital gains withholding payments: Exposure
Draft, 7 August 2015; Law Council of Australia, Submission
to Treasury, Foreign resident capital gains withholding payments: Exposure
Draft, 12 August 2015, all accessed 5 January 2016.
[40]. Allens
Linklaters, ‘Focus:
withholding tax on the sale of Australian property by foreign residents exposure
draft legislation released’, Allens Linklaters website, 28 July 2015,
accessed 5 January 2016; Law Council of Australia, ibid.
[41]. Charted
Accountants of Australia and New Zealand, Submission
to Treasury, Foreign resident capital gains withholding payments: Exposure
Draft, 7 August 2015; Australian Bankers Association, Submission
to Treasury, Foreign resident capital gains withholding payments: Exposure
Draft, 7 August 2015, both accessed 8 January 2016.
[42]. S
Danckert, ‘Tax
threat to $34bn investment’, The Australian, 16 May 2013, p. 25,
accessed 6 January 2016.
[43]. R
Harley, ‘Tax
hits foreign home owners’, Australian Financial Review, 18 May 2013,
p. 13, accessed 6 January 2016.
[44]. Explanatory
Memorandum, op. cit., pp 3–4.
[45]. The
Statement of Compatibility with Human Rights can be found at pages 41 (earnout
rights) and 70 (withholding tax) of the Explanatory Memorandum to the Bill.
[46]. Pitcher
Partners, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, op. cit.,
p. 4;
BDO (Accountancy Group), Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, op. cit.,
p. 1;
Chartered Accountants Australia and New
Zealand, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, op. cit.,
p. 2.
[47]. BDO
(Accountancy Group), op. cit., p. 1. Briefly, CGT event B1 refers to use and
enjoyment of the asset before the title passes to another party, event D1
refers to the creation of contract rights, event E2 refers to the transfer of a
CGT asset to a trust and event K6 refers to the sale of pre CGT shares or trust
interests.
[48]. Law
Council of Australia, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, op.
cit., p. 2.
[49]. The
Tax Institute, Submission
to Treasury, CGT treatment of earnout rights: Exposure Draft, op. cit.,
pp. 2–3.
[50]. Explanatory
Memorandum, op. cit., p. 13.
[51]. Chartered
Accountants of Australia and New Zealand, Submission to Treasury, CGT
treatment of earnout rights: Exposure Draft, p. 1; Tax Institute, op. cit.,
p. 2.
[52]. Pitcher
Partners, op. cit., p. 4, (this submission opposed the enactment of the
proposed amendments on the grounds of complexity).
[53]. Income Tax Assessment
Act 1997, subsection 230-460(13), accessed 7 January 2016.
[54]. Explanatory
Memorandum, op. cit., p. 20.
[55]. Chartered
Accountants of Australia and New Zealand, Submission to Treasury, CGT
treatment of earnout rights: Exposure Draft, op. cit., p. 4.
[56]. Ibid.,
p. 2; Pitcher Partners, op. cit., p. 4.
[57]. Tax
Institute, op. cit., p. 3; BDO (Accountancy Group), op. cit., p. 2.
[58]. Law
Council of Australia, op. cit., p. 3.
[59]. Treasury,
Tax and Superannuation Laws Amendment (2015 Measures No. 4) Bill 2015: CGT
treatment of earnout rights: Exposure
Draft, op. cit.
[60]. Chartered
Accountants of Australia and New Zealand, Submission to Treasury, CGT
treatment of earnout rights: Exposure Draft, p. 3; Pitcher Partners, op.
cit., p. 4.
[61]. Under
section 152-60 ITAA 1997 a ‘CGT concession stakeholder’ is a significant
individual in the company or trust (a significant individual in a company or
trust is defined in section 152-55 as a person having small business
participation percentage in the company or trust of at least 20%) or a spouse
of a significant individual in the company or trust, if the spouse has a small
business participation percentage in the company or trust at that time that is
greater than zero. These definitions and the associated rules have been
described as difficult to apply by those who regularly work in this area, see
Pitcher Partners, ibid., p. 5.
[62]. Under
section 152-65 ITAA 1997 a ‘small business participation percentage’ is
the sum of both direct and indirect participation interests.
[63]. Chartered
Accountants of Australia and New Zealand, Submission to Treasury, CGT
treatment of earnout rights: Exposure Draft, op. cit., p. 5.
[64]. Ibid.
[65]. Tax
Institute, op. cit., p. 4; also Chartered Accountants of Australia and New
Zealand, Submission to Treasury, CGT treatment of earnout rights: Exposure
Draft, op. cit., p. 6.
[66]. Tax and Superannuation
Laws Amendment (Employee Share Schemes) Act 2015; see also Parliament
of Australia, Tax
and Superannuation Laws Amendment (Employee Share Schemes) Bill 2015,
Australian Parliament website, accessed 7 January 2016.
[67]. ITAA
1997, section 152-5.
[68]. ITAA
1997, section 152-105 and 110.
[69]. ITAA
1997, Subdivision 152D.
[70]. ITAA
1997 Subdivision 152E.
[71]. ITAA
1997 Subdivision 152D and section 292-105. The limit is indexed, starting
off at $1 million in the 2007–08 year.
[72]. Tax
Institute, op. cit., p. 5.
[73]. Explanatory
Memorandum, op. cit., p. 43.
[74]. Taxation Administration
Act 1953, accessed 22 January 2016.
[75]. Explanatory
Memorandum, op. cit., p. 54.
[76]. A
Hawke (Assistant Minister to the Treasurer), ‘Second
reading speech: Tax and Superannuation Laws Amendment (2015 Measures No. 6)
Bill 2015’, House of Representatives, Debates, 3 December 2015, p. 14640,
accessed 21 January 2016.
[77]. Explanatory
Memorandum, op. cit., p. 50.
[78]. Law
Society of New South Wales, Submission
to Treasury, Foreign resident capital gains withholding payments: Exposure
Draft, op. cit., p. 3; Law Council of Australia, Submission
to Treasury, Foreign resident capital gains withholding payments: Exposure
Draft, op. cit., p. 2.
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