This chapter reviews the schedules of the bill separately with committee comments included as part of each section where necessary.
Schedule 1 received little substantive comment in submissions or during the public hearing. However, like some of the other schedules, it is to be applied retrospectively. There is further comment on retrospectivity below.
Schedule 2 also received little comment. However, Certified Practising Accountants – Australia (CPA) noted:
CPA Australia supports the integrity provision, but does not support retrospectivity given transactions undertaken in the period between announcement and assent may otherwise not have occurred or differed in their terms. In changing from the legislation as it stood at the time, there may be negative taxpayer impacts arising from changes in asset values and earn-out arrangements.
Outstanding issues remain with respect to partnership assignments and professional services firm structures. The bigger issue for practitioners is in relation to service trusts, as there is great uncertainty in the industry following both the [Australian Taxation Office] ATO’s withdrawal of its previous guidance and the delay(s) in issuing new guidance.
Without providing detailed comment, the Tax Justice Network Australia (TJN-Aus) stated that they particularly supported schedule 2.
Schedule 3 received a good deal of comment—particularly with regard to the status of the land under question. The evidence received revealed significant ambiguity about what would and would not be considered vacant land in terms of the tax concessions.
The Tax Institute (TI) commented that the schedule would lead to inappropriate consequences that need to be addressed, possibly though the following suggested approaches:
The provisions only be activated if the income from the property is less than the losses or outgoings to be deducted;
The paragraph immediately following proposed section 26-102(1)(b) be revised to remove the complexity; and
The definition of land needs to be reconsidered in the context of outgoings relating to one part of the land which contains no structure (e.g. rates on an adjoining block which contains no structure), which is used in conjunction with the structure on the other block).
MC Tax Advisors argued that the amendments would deny deductions to many taxpayers who appear to fall outside the schedule's intended purpose. The definition of land as being vacant if it has no substantive structures ignores the many circumstances where the utilisation of the land to derive income does not require such structure, such as agistment of farmland or if leased to use as a car park.
Dr Sonali Walpola, Lecturer of the Australian National University (ANU) College of Business: Tax and Transfer Policy Institute, identified three issues of concern with the schedule:
a lack of clarity as to whether, and how, the proposed measure changes the substantive law;
(apparently) changing substantive law in order to improve compliance; and
the exemption for companies and certain other entities.
Dr Walpola referenced the 1999 Steele v Deputy Commissioner of Taxation High Court judgement and concluded that proposed changes in law with respect to previous judgements should be clear and compliance issues shouldn't need to be addressed through changes in the law—rather through better compliance mechanisms.
CPA supported the provision's intent but had a number of concerns. Amongst other concerns, CPA argued that the bill does not fully consider the range of situations that might be subject to the measure. The relationship between the denied deductions forming part of the cost base and capital gains tax provisions should, in CPA's opinion, also be considered.
CPA stated the provisions should not deny deductions for entities earning assessable income but are not carrying on a business. They submitted:
…taxpayers who are earning assessable income from the vacant land should be entitled to claim the associated deductions, rather than being forced to put them into the cost base. Where they do not satisfy the requirements of carrying on a business, this may result in property owners being denied most deductions, including positively geared properties. It would be more appropriate if non-commercial loss rules applied to such situations, rather than these provisions.
CPA also argued that the scope of one section should be broadened to include trusts:
Trust operations may involve land leased by a trust to a related trust for use in carrying on a business. However, depending on the pattern of distributions or lack thereof, they may fail to satisfy the ‘connected with’ condition. They also cannot be affiliates. The provisions should be expanded to ensure that such trusts are not unfairly caught by the measure.
When questioned by the committee, the Australian Taxation Office (ATO) acknowledged that it is not able to provide advice on the operation of proposed law and that the application to a specific taxpayer will be dependent on all of the relevant facts and circumstances. The ATO did, however, provide explanations and a flow-chart that described how it would arrive at its conclusions. These will be implemented subject to the passage of the legislation.
The committee notes that the level of ambiguity concerning rightful deductions is the key theme raised with relation to this schedule. Reviewing the ATO response in terms of its decision making processes provides further clarification on the issues raised. However, the committee urges the ATO to provide as much public guidance to taxpayers as possible on this matter.
Feedback from submitters and witnesses on schedule 4 was mixed. TJN-Aus supported the schedule 4 amendments, stating:
The TJN-Aus supports Schedule 4 and believes that income tax should be imposed on circular trust distributions that apply to family trusts at a rate of tax equal to the top marginal tax rate plus the rate of the Medicare levy.
The government is to be commended for being willing to address the tax avoidance arrangement in which using family trusts as beneficiaries of each other in a ‘round robin’ arrangement, a distribution can be ultimately returned to the original trustee in a way that avoids any tax being paid on that amount.
The TJN-Aus would have preferred that a trustee of a family trust be required to lodge a trustee beneficiary statement with the Commissioner of Taxation as applies to other trustees. The TJN-Aus is concerned that without this requirement, how easy it will be for the ATO to detect round robin arrangements involving family trusts.
However, the TI expressed concerns about the uncertainty and potential for unintended outcomes in relation to the circular trust distribution provisions.
TI listed the following concerns:
There are difficulties in determining which trustee the measure will apply to. For example, if A and B both distribute to each other and it is not possible from the resolutions to determine which distribution occurred first (for example, both resolutions are dated 30 June) it is unclear where the circular distribution starts.
The interaction with family trust distribution tax is unclear. Given the proposed measures apply to family trusts and trusts with interposed entity elections, there is potential for circular distributions involving an entity in a family group and an entity outside that family group to result in both taxes applying to the distribution. At a minimum, this overlap should be avoided by making it clear that only one of the taxes should apply to any component of a distribution.
Unnecessary breadth / unintended outcomes
The provisions, as drafted, potentially apply to ‘circular’ distributions made several years after the first distribution in the ‘circle’. However, such distributions will have been subject to taxation and, as such, should not as a matter of policy be captured by the provisions…
This problem can be solved by making it clear that the legislation only applies if initiating trust includes in its income some part of a distribution that it has made in the same income year.
Schedule 5 received the most comment and critique from submitters and witnesses. Issues mainly focused on privacy concerns, and the consequences of a business or individuals inadvertently being placed on the list of tax-debtors.
Checks and balances
The TI state that it is strongly opposed to the tax debt disclosure provisions as they are currently drafted as the proposal does not provide adequate checks and balances. Further, the TI stated that provisions need to provide clear and adequate remedies and compensation if a mistake is made and an incorrect report is provided to a credit bureau. The TI:
advocated that Australia should consider further the approach taken in New Zealand where thresholds are higher than those proposed in Australia;
observed that, under the provisions, the ATO can report debts unless the taxpayer is disputing the debt under Part IVC. The proposed provisions, however, do not provide for the fact that some debts cannot be disputed via Part IVC;
The provisions should prevent the reporting of a debt unless the taxpayer has had adequate opportunity to dispute the debt and has failed to do so (or the dispute action has failed); and
noted that the proposed notice period of 21 days under proposed section 355-72(1)(e)(ii) is unlikely to be sufficient in circumstances where it is intended that notification may be made by way of ordinary post—given that Australia Post can now take 7 to 10 days to deliver mail.
CPA expressed concerns about the amendments being put forward:
…there remains a distinct lack of clarity of how credit reporting bureaus (CRBs) will manage, use and be accountable for the information. The disclosure of business tax debts needs to be carefully administered to ensure that businesses are not unduly or unfairly impacted by the policy; and that credit reporting bureaus abide by the conditions required by the legislation and the ATO in handling and using the disclosures, and removing them when required.
Self-Employed Australia (SEA) opposed the bill largely on the basis of the disclosure provisions. SEA is seeking legal analysis as to whether the bill could be in conflict with other Commonwealth legislation protecting privacy. If the bill is to be passed, they argued that adequate taxpayer protections need to be inserted into the bill.
SEA's primary concern is that the ATO lacks effective, independent, external oversight and transparency. SEA contends that this lack of oversight enables what it considers to be 'abuse' by the ATO.
The Inspector-General of Taxation and Taxation Ombudsman (IGTO) also felt that the bill as currently drafted does not sufficiently discern between those taxpayers who are not engaging with the ATO on their debt and those who are, commenting that:
…tax officers should keep taxpayer information confidential. If the disclosure of business tax debts is intended to apply only to undisputed tax debts, then the bill in its current form requires amendment. This is because it can apply to disputed debts and to taxpayers who arguably are engaging with, or may be seeking to engage with, the Australian Taxation Office either successfully or unsuccessfully.
Potential harm if mistakes are made
The IGTO acknowledged that, should a business be accidentally put on a list (i.e. reported to a credit bureau), then this could be potentially catastrophic:
Senator GALLACHER: …If the tax office notifies a credit agency there's a tax debt, no-one's going to give that business credit, are they, unless they can prove that they're paying it off at $100 or $200 a week? You'd just disappear from credit altogether.
Mr Pengilley: I think there's a real risk that the current creditors also might call in their existing debts as well.
Senator GALLACHER: So it's catastrophic for a business to be placed on this list and have it published.
Mr Pengilley: It could be, yes.
The Institute of Public Accounting (IPA) observed that, with regard to the removal of information on the debt, insufficient safeguards have been included in the legislation:
…important safeguards are not—I'll repeat: are not—in the legislative framework.
There is no hurt for the credit bureau if, for example, they do not remove that information within two business days and expunge all the data in relation to that default so that it doesn't appear in any future credit report. The intent is for this legislation not to hurt a taxpayer going forward. Once they've engaged in meeting that tax debt, then that record should be wiped clean. We do not have that either in the bill or in the legislative instrument, and that is our principal concern.
CPA also warned that there was the potential for an increase in predatory lending:
…the legislation may lead to an increase in predatory lending to businesses who wish to pay off tax debts to prevent disclosure to CRBs, [Credit Reporting Bureaus] especially where the ATO is unwilling to enter into a payment arrangement. This may compound, rather than resolve, small business liquidity challenges leading to a greater number of insolvencies than may otherwise be the case.
The government announced in the 2016—17 Mid-Year Economic and Fiscal Outlook that the measure would initially only apply to business taxpayers with an Australian Business Number (ABN) that have a tax debt, of which at least $10,000 is overdue for more than 90 days. Following consultation, the government increased the tax debt threshold from $10,000 to $100,000 to target higher risk tax debts.
As such, the proposed law requires that the Commissioner of Taxation notify the taxpayer at least 21 days prior to disclosure of the tax debt, as long as it has met the reporting requirement for a debt that is 90 days overdue.
These time-base requirements have attracted criticism as being too short. When asked directly, the IGTO stated that they believed 21 days was insufficient notice, mainly due to logistical restraints.
Mr Joseph:…I think, having regard to a number of factors—for example, sending a notice by post, particularly if someone is in a regional area, could take more than a week—the process envisaged in the explanatory memorandum talks about taxpayers going through the ATO's own internal complaints process, which itself is 15 business days or 21 calendar days. So it envisages a lot of things happening and, at the end of that, lodging a complaint with the IGTO. Right now we don't think that 21-day period is sufficient for all of that to occur.
Ms Payne: We also would like to see some more certain means of disclosure required in the way that the disclosure is to be delivered by the tax office. If you send things via normal post, three or four days can elapse—and time is of the essence.
The IPA also felt that 21 days was insufficient, especially given that their intermediaries are not also notified in writing:
21 days may not be sufficient for some taxpayers, especially given that their intermediaries aren't also notified in writing. We also question 'in writing'. We would like that to be 'registered mail'. If you accept that the consequences for this are quite severe—that is, not being able to access finance—I think, as a minimum, it should go to their intermediary and, secondly, it should be by registered mail so there's none of this business of, 'I didn't get it.'
The Australian Chamber of Commerce and Industry (ACCI) also felt that 21 days is too short, and proposed a 45 day period instead.
Reporting timeframe and penalties
The ACCI also had issues regarding the required reporting period. ACCI believed them to be too narrow and the penalties too harsh in order to pursue genuine tax avoidance and tax crime. ACCI recommended that the 'overdue' window be extended from 90 days to 180 days to allow businesses with genuine cases of financial and non-financial hardship sufficient time to meet their obligations.
ACCI argued that the proposed penalties were too harsh for non-reporting or payment within 90 days, and would impose significant barriers to business attempts to access finance, resolve disputes and further conduct business in Australia. Further, ACCI argued that the proposed penalties were counterproductive to the government’s stated agenda of creating an enabling business environment while providing better services to the community.
CPA similarly felt that the 90 day threshold was too low and should be increased to 120 days. They commented:
Due to the debt payment processes of many larger businesses, the 90 day threshold is a comparatively short period, especially for small businesses. Research by Xero shows almost half of invoices are paid late and many small businesses are paid 60 or more days after the invoice is issued. This has a significant effect on the ability to pay tax liabilities.
In response to these concerns, the ATO stated that it is not the ATO's intention to unnecessarily punish or disadvantage businesses or individuals, and there are existing mechanisms to deal with mistakes despite there being no specific measure in this particular piece of legislation:
We have no incentive to incorrectly or unfairly disclose a small business's debt to a credit agency. There is no incentive for us to do that…
Of course there are consequences if we commit an act of maladministration, but there are no consequences in this legislation—I think that was the testimony.
Administration and consultation
In addition to concerns about privacy, there were some broader issues raised with regard to administration of the new law and consultation in producing the draft legislation.
IGTO unable to deal with a large influx of reviews and complaints
During the public hearing, the IGTO described its circumstances should the proposed legislation result in the ATO requiring information of the IGTO or a large number of complaints. In short, under current resourcing limits, the IGTO would be unable to properly administer such a large amount of work.
Consultation and review
The committee heard that while Treasury had undertaken a degree of consultation in the drafting of the bill, it was not as complete as it could have been. The IGTO made a series of recommendations in its submission to the committee, and while there had been some consultation beforehand, there had been no direct discussion between the IGTO and Treasury or the ATO in relation to those recommendations:
Senator GALLACHER: You've put them up as a submission. You haven't formally got a response to the submission from the ATO or Treasury?
Ms Payne: Our submission is to this committee.
Senator GALLACHER: So you're not likely to. Have you formally put it to both those two groups?
Mr Pengilley: The submission itself hasn't been formally put…
Senator PATRICK:…We've covered off on consultation. Just to be clear, since making your submission, no-one from Treasury has contacted you to talk to you about your concerns?
Ms Payne: No. I haven't checked my phone in the last hour, but no.
Following on from the consultation concerns is the status of the supporting legislative instruments and other documents. The IPA noted in their submission that these documents are yet to be finalised:
The bill refers to a legislative instrument that will determine whether a taxpayer can be subject to the new disclosure arrangements. In addition to the legislative instrument, the Australian Taxation Office (ATO) will shortly table their administrative approach to the disclosure of tax debt information to credit reporting bureaus (CRBs). At the time of writing, this document was not yet finalized; however, it will contain strict criteria that CRBs must adhere to under the reporting arrangement. The legislative instrument and the ATO administrative approach will be subject to separate consultation process.
In response to the ATO's testimony, Senator Patrick opined:
You've put the cart before the horse in this instance because you're asking the parliament to pass legislation when you haven't settled on what the declaration will be that describes how it will be administered…you ask us to grant a power to the tax office without seeing those crucial elements of the legislation that sit underneath it.
If a large part of the administration of the bill is to be done through these mechanisms and they are incomplete prior to the bill being presented, then review of the bill by the committee and thus the Parliament is problematic.
It is apparent to the committee from the number of submitters who raised concerns and from the witness testimony received, that there are a number of issues that would benefit from greater clarity from Treasury and the ATO.
While the committee recognises the efforts of both organisations to engage with stakeholders through consultation, it notes the IGTO's recommendations which may have been able to be accommodated through closer collaboration had it occurred earlier.
The committee acknowledges that the standard practice of drafting legislative instruments is to follows the finalisation of a bill through Parliament. However, this leaves the committee process with limited opportunity to understand the interaction of the legislation and associated regulation.
The committee is concerned that the 21 day disclosure notification period could be inadequate and consideration should be given to for a longer notification period. Similarly, consideration could be given of the potential to notify appropriate intermediaries, such as tax agents, where circumstances allow (i.e. along with the taxpayer).
The committee also expresses its concern about the privacy aspects of disclosing tax debts. An inappropriate disclosure is not only embarrassing for the business concerned, but may also result in financial loss. The public, and indeed the committee, is constantly seeking greater reassurance from the ATO and Treasury about protecting the privacy and reputations of those business entities with tax debts, particularly where those tax debts are in dispute.
The committee notes that New Zealand has already successfully introduced similar legislation and that a number of witnesses commented on it positively. Mr Clint Harding of the Law Council of Australia provided a concise summary of the differences between the New Zealand law and the bill:
Formal notification is required;
Reasonable efforts to recover reportable unpaid tax must have been made prior to notification;
NZ$150,000 threshold and the proportion of unpaid tax to the taxpayer’s assessable income for the year must in the Commissioner’s opinion be 30 per cent or more;
No reporting of taxpayer’s who have requested financial relief (including for serious hardship) or who have applied for remission of the debt;
The Commissioner must publish annually a number of things including the number of notices and number of taxpayers who have been reported; and
Reportable unpaid tax does not include amounts that are “subject to a dispute or challenge [under the relevant NZ provisions], and does not include amounts that are subject to an instalment arrangement.
Mr Harding concluded that there are a number of additional safeguards that are not present in the Australian legislation, or are potentially wider than the equivalent safeguards in the draft Australian measures. Some of these safeguards have been picked up by the ATO in their draft consultation on how the provisions will be administered.
The committee considers that it would be in the best interest of taxpayers if further privacy protections from the New Zealand experience were assessed by the ATO and Treasury for suitability for application in Australia.
The introduction of e-invoicing was generally supported in submissions and in testimony provided during the public hearing.
The Chartered Accountants Australia New Zealand (CAANZ) were particularly supportive, arguing that the government be frank with the business community about the tax administration benefits which are also expected to accrue from greater adoption of e-invoicing. CAANZ has long been of the view that there should be more openness about how products such as e-invoicing are part of a bigger strategy to revolutionise how Australia's business community will increasingly work in a digital, online environment.
The majority of submitters were supportive of this amendment, arguing that it was an injustice for this 'loophole' to exist. The IPA indicated that this proposal had been mooted as early as 2016, and been part of a previously existing bill in 2017 which lapsed at the May 2019 election. As such:
The loophole, as we speak, is still in operation. What we're saying is that the bill has a prospective date for that change, that integrity measure. It starts 1 July next year. What we're saying, effectively, is that employers have had more than two years notice that this does not fit in with the intent of the policy. We're basically legalising SG theft by allowing this to continue to occur until the start of the next financial year. We believe that that is wrong on a number of principles. You're short-changing someone who makes a salary sacrifice contribution by allowing that sacrifice to be used to meet the employer's SG obligation. Secondly, if an employee has entered into a salary sacrifice arrangement, you're allowing the employer to base the SG, the super guarantee, on a lower base. Both those things do not fit within the policy intent, and they should be removed at least to the start of this financial year.
As shown above, the main question raised by submitters on schedule 7 was the implementation date of 1 July 2020. The IPA further commented:
It doesn't appear there is any obvious reason why this cannot start at the start of this financial year. In theory we do not like retrospective tax changes, but where this goes against the policy intent of a particular policy—and it's, as we referred to it, legalised theft—I think we've given employers enough notice. There's no good reason I've come across that says you should not apply this from 1 July. Given that SG is required to be paid 28 days after the end of the quarter there's still time to catch up, depending on the progress of this bill. But even if the bill wasn't passed into law there's no reason why employers could not go back this financial year to pay back some SG that belonged to their employees.
Treasury responded that the reason for the delay was ultimately based on administrative reality:
…this will result in some payroll providers needing to update their software to prevent those employers who are doing the wrong thing—an unscrupulous thing; it is not wrong by law yet—from continuing to do that. Some of the feedback we received from payroll providers when we consulted on this was that they would need time to do this, so obviously making it retrospective doesn't give them time at all.
Dr Peter Klomp argued that the bill has a major flaw regarding schedule 7 as it does not address salary sacrificed amounts for fringe benefits.
The Council of Small Business Organisations Australia (COSBOA) has previously highlighted the complexity of the superannuation collection process for employers, and have advocated for the removal of employers from the process and the inclusion of superannuation in 'pay as you go' (PAYG) payments to the ATO. Under such a system, this issue would not exist.
By definition, this is an omnibus bill with a number of schedules, most of which have been uncontroversial and can be passed as is, notwithstanding the need for possible minor amendments later.
Schedule 3 has raised concerns of definition and application. In this context the committee urges the ATO to provide guidance to taxpayers on the application of the definitions pertaining to vacant land and how tax deductions and exemptions are to be applied. This advice should be available as soon as practicable after passage of the legislation.
The committee notes media reporting on 3 September 2019 indicating that investors who own an apartment in the abandoned Opal or Mascot towers may lose the ability to negatively gear their property under schedule 3 of the bill. The committee would like to see Treasury and the ATO address any unintended consequences for property owners where the property is unusable for reasons outside their control.
The committee calls on Treasury and the Australian Taxation Office to address any unintended consequences for property owners where the property is unusable for reasons outside their control.
Schedule 5—the disclosure of business tax debts—raised the most concerns across the bill's schedules. For the committee, the fact that the schedule relies on unfinished legislative instruments and administrative process documents makes it difficult to assess the final implications.
The committee noted the Inspector-General of Taxation and Taxation Ombudsman (IGTO) submission and its 17 recommendations and concerns regarding the potential for the IGTO to be overwhelmed by requests for assistance. The committee considers that there needs to be a deeper engagement by the ATO to address the IGTO's concerns. The committee notes that the chief concerns raised regarding the schedule are; potential privacy implications, notification timeframes, disclosure timeframes and the potential risk to businesses from disclosure errors made by credit reporting bureaus or the ATO.
As previously indicated, the committee is of the view that business' tax practitioner representatives should be considered as part of the notification process undertaken by the ATO and that businesses also need to be fully informed of their right to recourse through the IGTO before any disclosure takes place. The committee also remains concerned generally about the lack of any articulated oversight or recourse in regards to the credit reporting bureaus and their potential misuse of tax payer information.
Notwithstanding the committee’s concerns as outlined above, it must be acknowledged that these are judgement calls. The purpose of the disclosure of business debts is protecting business by making overdue tax debts more transparent (lessening risk of extending business credit, for example). It also encourages taxpayers to engage with the ATO and reduces any advantage obtained by businesses that do not pay their tax in a timely way when compared to the vast majority of businesses that do.
The committee recommends that the Australian Taxation Office engages with the Inspector-General of Taxation and Taxation Ombudsman to address the range of concerns the IGTO raised regarding schedule 5.
The committee recommends that the bill be passed.
Senator Slade Brockman