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Preliminary Pages

Chair’s foreword

The Bills make a number of significant improvements to the tax laws across five issues, each of which the committee examined during the inquiry.

Schedule 1 of the Tax Laws Amendment (2012 Measures No. 2) Bill 2012 and the Pay As You Go Withholding Non-compliance Tax Bill 2012 seek to make directors personally liable for their company’s unpaid superannuation guarantee amounts. This will prevent unscrupulous directors from phoenixing their businesses to avoid their super responsibilities. This practice has cost Australian employees hundreds of millions of dollars in lost superannuation and the committee commends both the intent and the operation of the Bills in this regard.

Last year, the committee inquired into a package of Bills in similar terms. The committee recommended that the Government should investigate whether additional defences for directors should be inserted in the Bills. This has occurred. If passed, the legislation will give new directors 30 days, up from the current 14 days, to conduct due diligence before adopting a company’s pre-existing obligations. Directors will also not be liable for a director penalty where they took reasonable care in a matter and applied the super legislation in a reasonable way.

The committee also recommended that the Government should investigate whether the provisions should only apply if an individual has been engaged in phoenixing. The Bills do not have this feature and industry argued that they should be amended along these lines. Ultimately, the committee has come to the view that such a change is not warranted because the provisions will only apply when a company has not only failed to pay a super amount, but that it has failed to notify the Australian Taxation Office (ATO) of this two months after the event. The provisions are only triggered by a consistent, high level of non-compliance.

Schedule 2 of the main Bill is designed to ensure that the tax treatment of financial arrangements is consistent with the taxation of financial arrangements (TOFA) tax timing rules. The provisions are to be retrospective from the commencement of other TOFA amendments on 1 July 2010 and this retrospectivity was the key issue in the inquiry. Stakeholders expressed concern that taxpayers who had chosen to adopt the new TOFA rules (rather than elect to keep prior arrangements) would be disadvantaged. However, the committee accepts that the measures restore the original policy intent and the Government had previously flagged that retrospectivity will be necessary with TOFA to restore the policy intent from time to time.

Schedule 3 aims to protect a $6 billion revenue risk that has arisen as a result of retrospective amendments in 2010 in relation to consolidation rules. These changes allowed consolidated groups to claim deductions back to 2002 in relation to the residual tax cost setting rule and the rights to future income rule. In 2011, revenue problems with the 2010 changes became apparent and the Board of Taxation conducted an inquiry into the matter. The Bill largely reflects the Board’s report. Groups that have already received a refund or have an ATO ruling will generally be protected from the retrospective changes. Given the transparency of the process and the amount of revenue at stake, the committee again accepts that retrospective legislation is appropriate.

The Income Tax (Managed Investment Trust Withholding Tax) Amendment Bill 2012 and Schedule 4 of the main Bill increase the tax rate on managed investment trusts for foreign investors from 7.5 per cent to 15 per cent. This is a partial reversal of the recent decreases on this tax rate from 30 per cent a few years ago. The committee is mindful that, as equity investments, the correct comparative rate is the company tax rate, currently set at 30 per cent. Although the industry sector was concerned about how the change would affect it, the committee accepts the Government’s argument of the wider macroeconomic importance of Australia having a sound fiscal strategy, an important driver for the whole economy.

The Passenger Movement Charge Amendment Bill 2012 increases the charge from $47 to $55 from 1 July 2012 and indexes it to the consumer price index. Similar to the managed investment trust provisions, the issues revolved around an industry sector being concerned about how it would be affected by a revenue increase. Once again, however, the committee supports the provisions on a national basis because of the Government’s overall fiscal strategy. The committee notes that the Government remains committed to the Tourism 2020 initiative and continues to support the industry through programs such as T-QUAL, infrastructure upgrades and maintaining and expanding tourism attractions.

The Bills represent a responsible package aimed at securing a sustainable revenue base for Australia, as well as protecting the superannuation entitlements of Australian workers. The Bills should pass.

On behalf of the committee I thank the organisations that assisted the committee during the inquiry through submissions or participating in the hearing in Canberra. I also thank my colleagues on the committee for their contribution to the report.


Julie Owens MP


Membership of the Committee



Ms Julie Owens MP

Deputy Chair

Mr Steven Ciobo MP


Mr Scott Buchholz MP


Mr Stephen Jones MP


Dr Andrew Leigh MP


Ms Kelly O'Dwyer MP


Mr Craig Thomson MP





Committee Secretariat


Mr Stephen Boyd

Inquiry Secretary

Mr David Monk

Inquiry Staff

Ms Samantha Mannette

Ms Zoë Smith

Dr Phillip Hilton

Ms Siobhan Coughlan

Administrative Officer

Ms Natasha Petrović

Terms of reference

On 24 May 2012 the Selection Committee requested the Committee to inquire into and report on:

n  Tax Laws Amendment (2012 Measures No. 2) Bill 2012;

n  Income Tax (Managed Investment Trust Withholding Tax)
Amendment Bill 2012;

n  Pay As You Go Withholding Non-compliance Tax Bill 2012; and

n  Passenger Movement Charge Amendment Bill 2012.

Under Standing Order 222(e), reports of the Selection Committee are treated as having been adopted by the House when they are presented.


List of abbreviations


Australian Airports Association


Australian Institute of Company Directors


Australian Securities and Investment Commission


Australian Tourism Export Council


Australian Taxation Office


Consumer Price Index


General anti-avoidance rule


Inspector General of Taxation


Income Tax Assessment Act


Managed investment trust


Organisation for Economic Cooperation and Development


Pay As You Go


Pay As You Go Withholding


Passenger movement charge


Superannuation guarantee


Superannuation guarantee charge


Sustainable Tourism Cooperative Research Centre


Taxation Administration Act


Taxation of financial arrangements


Transport and Tourism Forum



Recommendation 1

That the House of Representatives pass the Tax Laws Amendment (2012 Measures No. 2) Bill 2012, Pay As You Go Withholding Non-compliance Tax Bill 2012, Income Tax (Managed Investment Trust Withholding Tax) Amendment Bill 2012, and the Passenger Movement Charge Amendment Bill 2012, as proposed.


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