11 Oct 2019 | Riposte | Corporate and Mergers & Acquisitions | Financial Services | Private Wealth | Private Equity
Thin Capitalisation - Arm’s length Debt Test – PCG 2019/D3
The ATO has now provide the following guidance on the application of the Arm’s Length Debt Test (ALDT) in the thin capitalisation rules.
11 Oct 2019 | Tax Brief | Corporate and Mergers & Acquisitions | International | Real Estate | Financial Services
A Digital Revolution at the OECD?
The OECD’s Public Consultation Document released in Paris on 9 October proposes changes to the international tax regime which would radically re-shape fundamental building blocks such as the permanent establishment threshold, the arm’s length pricing principle, and even the separate entity principle for taxing members of corporate groups. The approach in the Consultation Document would be a momentous change to positions the OECD has defended for decades, and to the international tax landscape more generally.
17 Sep 2019 | Riposte | Transfer Pricing | Financial Services | Private Equity | Private Wealth | Corporate and Mergers & Acquisitions
Glencore Transfer Pricing Decision
The recent Glencore decision suggests some limits on the ATO’s ability to reconstruct related party transactions in transfer pricing disputes.
13 Sep 2019 | Riposte | Private Equity | Private Wealth | Corporate and Mergers & Acquisitions | Financial Services
International Tax Trust Morass – Again!
After almost 3 years consulting in relation to tax issues for non-resident beneficiaries in relation to trust level capital gains by an Australian resident trust, the ATO has continued the recent trend of making bad legislation even worse in two recent draft tax determinations.
30 Aug 2019 | Riposte | Private Wealth | Corporate and Mergers & Acquisitions | Energy & Resources | Financial Services
New corporate residence rules?
The High Court’s decision in Bywater and the ATO’s approach to the impact of the decision has significantly increased the focus on corporate tax residency. The Treasurer has now asked the Board of Taxation to review Australia’s corporate tax residency rules and report by the end of the year.
03 Jul 2019 | Riposte | Corporate and Mergers & Acquisitions | Financial Services | International
Corporate Tax Changes from 1 July 2019
To kick off the new financial year, we set out some important tax changes which take effect for many corporate taxpayers from 1 July 2019.
17 Apr 2019 | Riposte | Financial Services | Transfer Pricing | Corporate and Mergers & Acquisitions
Arm’s length debt test – ATO issues draft tax ruling
On 5 April 2019, the Australian Taxation Office (ATO) released draft Taxation Ruling (TR) 2019/D2 providing updated guidance on the “arm length debt test” (ALDT) in the thin capitalisation provisions.
12 Apr 2019 | Riposte | Financial Services
Another limit on deducting interest
The ATO has released a draft ruling on the hybrid mismatch ‘integrity rule’, which makes clear how broad the potential scope of the rule is, even before the Budget announcement that it will be amended to broaden its scope even further. It is yet another provision that taxpayers need to be mindful of when claiming deductions on related party debt and derivatives.
05 Apr 2019 | Riposte | Financial Services
“Tier 3” securities in Australia – further tax regulations?
Australia’s largest banks will soon be required to issue further regulatory capital. Discussions are currently ongoing with APRA in relation to the precise form of this capital. If Australia adopts the approach seen in a number of European countries then it is possible that a further class of securities (commonly referred to as “Tier 3” capital) will be introduced in Australia. Although such Tier 3 securities should be classified as debt for Australian tax purposes, it is likely that further Regulations will be required in order to ensure this treatment.
02 Apr 2019 | Riposte | Financial Services
Receivers’ obligations to retain money for tax
The ATO has released a draft tax determination, TD 2019/D2, dealing with one aspect of the obligations of a receiver in handling money where a future tax liability may be assessed.
19 Mar 2019 | External Publications | Financial Services
Banking Tax Update 2019
Consultant Richard Vann presented on FCT v BHP Billiton Limited  FCAFC 4 and Directors Andrew Hirst and Julian Pinson presented on the hybrid mismatch rules, with a focus on examples affecting banks.
17 Jan 2019 | Riposte | Financial Services
Accruing Interest and Unpaid Withholding Tax
The ATO has released a Taxpayer Alert dealing with the interaction between the deduction for interest accruing to non-residents and triggering interest withholding tax. It is both reassuring and ominous.
07 Nov 2018 | Riposte | Corporate and Mergers & Acquisitions | Financial Services | International
UK Digital Services Tax
The UK Chancellor has announced that it will legislate an interim 2% tax on certain digital service business models, pending an international solution. Given the Australian Treasury’s recent discussion paper on whether Australia should consider a similar regime, this article looks at some of the issues that will need to be addressed on implementation.
07 Nov 2018 | Riposte | Real Estate | Financial Services | Energy & Resources | Transfer Pricing
Unreal transfer pricing does not solve very real debt-equity issues
The ATO has released draft determination TD 2018/D6 on the relationship of the debt-equity and transfer pricing rules in relation to related party loans. The draft makes unreal assumptions about transfer pricing and avoids serious analysis of the debt-equity rules, with results that unfortunately are becoming common in ATO guidance – assertion without justification.
15 Oct 2018 | Riposte | Real Estate | Financial Services | Energy & Resources
Source rule in treaty means what it says
The Full Federal Court has confirmed in a short but emphatic judgment that the sourcing rule in Australia’s tax treaties means what it says. It rejected the argument that tax treaties are exclusively relieving and cannot lead (indirectly) to higher tax burdens.
12 Oct 2018 | External Publications | Financial Services
Anti-Hybrids: The Current State of Play
Anti-Hybrids: The Current State of Play is a paper written and presented by Andrew Hirst and Ryan Leslie for The Tax Institute’s Vic 6th Annual Tax Forum. The paper provides an overview of the rules which will take effect from 2019 and provides practical examples of how the rules will affect a range of instruments and structures.
03 Oct 2018 | Riposte | Financial Services | Corporate and Mergers & Acquisitions | International
Digital economy: Not so urgent?
Yesterday Treasury released the long awaited discussion paper on corporate taxation and the digital economy. The paper is mainly a summary of international developments to date and does not give much sense of a direction for Australia. Rather the overall impression is that Australia is parking the question in the too hard basket and does not expect internationally coordinated action for some years to come.
21 Aug 2018 | Riposte | Real Estate | Financial Services | Employment & Superannuation
Trust the PDS
The Full Federal Court decision in Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation  FCAFC 122 highlights the importance of statements in offer documents to the interpretation of underlying legal documents - here a trust deed - and the borderline as to when distinct trusts will be created through the use of separate classes of units.
13 Aug 2018 | Riposte | Financial Services | Private Equity | Private Wealth
Tax Law Bites Trust Law on Franking Credits
The High Court of Australia has restored sanity in a long running saga in which a trustee purported to separate franking credits from the underlying dividends in allocations to beneficiaries. The Court held (as the parties now accepted) that this was not possible and that a contrary decision of the Supreme Court of Queensland in its trusts jurisdiction to which the Commissioner of Taxation was not party did not bind the Commissioner.
25 Jun 2018 | Riposte | Financial Services | International
Commissioner reframes CMC test
In TR 2018/5 and PCG 2018/D3, the Commissioner has used the High Court decision in Bywater to reframe the central management and control (CMC) test of company residency.
24 May 2018 | Riposte | Financial Services
Anti-hybrid measures Bill
The Bill to enact the Government’s announced anti-hybrid measures was introduced into Parliament today. As expected, the Bill makes changes to franking and exempt dividends and payments to low-tax jurisdictions, as well as a suite of measures, based on the OECD/G20 Final Report on BEPS action 2, dealing with hybrid financial instruments and hybrid entities.
02 Nov 2017 | Riposte | Financial Services
Proposed changes to venture capital tax provisions miss the mark
The Government has released an exposure draft of proposed changes to the Early Stage Venture Capital Limited Partnership (ESVCLP), Venture Capital Limited Partnership (VCLP) and Early Stage Innovation Companies (ESIC) tax provisions.
08 Feb 2017 | External Publications | Financial Services
Director Julian Pinson, Associate Mary Hu and CBA Tax Manager Jerome Wood authored "Branch attribution" which Julian and Jerome presented at The Tax Institute Financial Services conference in February 2017.
08 Feb 2017 | External Publications | Financial Services
BEPS and hybrid mismatch arrangements
Andrew Hirst authored "BEPS and hybrid mismatch arrangements" which he presented at The Tax Institute Financial Services conference in February 2017.
08 Feb 2017 | External Publications | Financial Services
The changing shape of regulatory capital
Tony Frost co-authored and presented "The Changing Shape of Regulatory Capital" with Bob Herbert of Morgan Stanley at The Tax Institute Financial Services conference in February 2017.
27 Oct 2016 | External Publications | Financial Services
Financing and tax – what’s new and what to watch out for
Cameron Blackwood authored and presented "Financing and tax – what’s new and what to watch out for" at The Tax Institute's Corporate Tax Masterclass in October 2016.
11 Oct 2016 | Riposte | Real Estate | Financial Services | Projects & Infrastructure
Related schemes & 974-80 ED at last
Exposure draft legislation intended to address the Board of Taxation’s recommendations concerning s.974-80 and the related schemes provisions in the debt/equity rules has finally been released. Do the proposals provide clarity to taxpayers who are not on all fours with the examples?
24 Aug 2016 | Riposte | Financial Services
The expanding domain of hybrid mismatch arrangements
The ATO is currently focussing on offshore branches, the “law” and “lore” in relation to which are extremely complicated. The complexity is likely to increase as a result of the OECD’s new proposal to apply BEPS hybrid mismatch-type principles to offshore branch structures.
16 Aug 2016 | Riposte | Financial Services
Offshore permanent establishments – a current area of ATO focus
Last week, the ATO issued three further Taxpayer Alerts effectively operating as a warning in relation to certain types of taxpayer behaviour which they regard as egregious. One of the Taxpayer Alerts, TA 2016/7 applies to “Arrangements involving permanent establishments”.
17 Mar 2016 | Riposte | Financial Services
Changes to ruling on FITO caps
The ATO has issued an Addendum to its 2014 Ruling on the impact on FITOs of losses on FX derivatives. The Addendum should be welcome news for some participants in the banking industry.
17 Feb 2016 | External Publications | Financial Services
Source: Where are we now?
Andrew Hirst, Euan Campbell (Assistant Commissioner, ATO) and Adrian Mak (ATO), co-authored and presented "Source: Where are we now?" at The Tax Institute's Financial Services conference in February 2016.
17 Feb 2016 | External Publications | Financial Services
Thorny issues in Leasing
Chris Colley published and presented "Thorny issues in Leasing" at The Tax Institute's Financial Services conference in February 2016.
17 Feb 2016 | External Publications | International | Financial Services
Financial services in a post-BEPS world
Prof Richard Vann published and presented "Financial Services in a Post-BEPS World" at the Tax Institute Financial Services conference in February 2016.
24 Sep 2015 | Riposte | Financial Services
Swaps: why so difficult?
Draft taxation ruling TR 2015/D3 continues the long, sad attempt to deal with the tax implications of what are now very common derivative financial instruments: swaps.
24 Jun 2015 | Riposte | Financial Services
Sanity prevails on TR 2014/7
The ATO has issued an amended version of TR 2014/7 dealing with gains and losses from FX derivatives. Though issues remain in the revised version, the withdrawal of certain aspects of the initial ruling concerning source are welcome.
13 Mar 2015 | Riposte | Financial Services
OBU rules: Exposure Draft
Exposure Draft changes to the OBU rules have been released. Some historic problems have been addressed, but is this another lost opportunity to properly reform a struggling regime?
18 Feb 2015 | External Publications | Financial Services
Update on Capital Management Issues
Tim Kyle authored and presented "Update on Capital Management Issues" at The Tax Institute's 2015 Financial Services Taxation Conference in February 2015.
09 Feb 2015 | Riposte | Financial Services
Instalment Trusts: ED
On 19 January 2015, Treasury released exposure draft legislation which would amend the income tax law to provide “look-through treatment” for “instalment trusts”. Do we really need this legislative fix?
11 Dec 2014 | Riposte | Financial Services
FX hedging ruling
The ATO has just finalised Taxation Ruling TR 2014/7 on the treatment of FX hedge gains and losses under the foreign income tax offset regime. There are a lot of pieces to consider in solving this puzzle.
09 Dec 2014 | Riposte | Financial Services
Murray on superannuation and retirement incomes
There were three superannuation and retirement income tax recommendations in David Murray’s Financial Services Inquiry report on Sunday. Consistent with its brief however, the report hedges to some extent by inviting further consideration in next year’s Tax While Paper. This Riposte outlines the key take away points.
21 Feb 2014 | External Publications | Financial Services
Offshore Banking Units
Tony Frost, Craig Marston and CBA's Ultan Mac Donald authored "Offshore Banking Units" for The Tax Institute's 2014 Financial Services Taxation Conference. The paper was presented by Tony Frost and Ultan Mac Donald at the event in February 2014.
07 Jul 2011 | Tax Briefs | Financial Services
Limited Recourse Debt
The recent High Court decision in the BHP-Billiton Finance case brings to an end the ATO’s long, and ultimately fruitless, litigation against the BHP-Billiton group. This Tax Brief analyses the significance of the final judgment in this long and complex series of cases.
Limited Recourse Debt (50 kb)
24 Jan 2013 | Tax Briefs | Financial Services
Reforms to TOFA Rules
This Tax Brief outlines the main impacts of the proposals in an Exposure Draft of amendments to the rules governing the taxation of financial arrangements (‘TOFA’).
Reforms to TOFA Rules (106 kb)
09 Apr 2013 | Tax Briefs | Financial Services | Employment & Superannuation
Changes to Superannuation
The Treasurer has put an end to the frenzied pre-Budget speculation by announcing the government’s plans for changing superannuation. This Tax Brief examines the seven measures announced by the Treasurer and the likely effects of the proposals.
Changes to Superannuation (187 kb)
30 Apr 2010 | Tax Briefs | Financial Services
TOFA - Refinements to the Puzzle
On 20 April 2010, the Assistant Treasurer released a number of proposed refinements to the TOFA puzzle, contained in an exposure draft and accompanying draft explanatory memorandum. This Tax Brief considers whether all the pieces of the TOFA puzzle fit together.
TOFA - Refinements to the Puzzle (45 kb)
04 Sep 2009 | Tax Briefs | Financial Services
TOFA for Managed Funds
This Tax Brief considers the issues that the TOFA regime will present for managed funds such as domestic and international cash and bond funds, share funds and property trusts.
TOFA for Managed Funds (57 kb)
05 Jun 2009 | Tax Briefs | Financial Services
Deductibility of Interest on Subordinated Debt
In an earlier Tax Brief [available at http://www.gf.com.au/477_634.htm ] we reported on a case denying St George Bank a deduction for interest paid on a subordinated loan issue. The Full Federal Court recently heard the taxpayer’s appeal in this case and unanimously confirmed that the interest expense was not deductible. In this Tax Brief we review the Court’s reasoning and the ongoing significance of this case.
Deductibility of Interest on Subordinated Debt (35 kb)
15 May 2009 | Tax Briefs | Financial Services
In-house Finance Companies
The ATO has long been concerned about the tax issues arising from in-house finance companies operating within large listed groups. This Tax Brief considers the substantive issue of whether an in-house finance company is entitled to a deduction for the loss crystallised on writing off as a bad debt the principal and accrued but unpaid interests on loans made to other entities in the same group is addressed in light of the Federal Court’s decision in the BHP Billiton case.
In-house Finance Companies (42 kb)
09 Apr 2009 | Tax Briefs | Financial Services
Debt for Equity Swaps
It may be possible to find a silver lining in the cloud of economic woes being experienced by many struggling businesses unable to meet their interest and principal obligations. One option that may be open to a debtor is to recapitalise the business by entering into a debt for equity swap arrangement. This Tax Brief considers some of the tax outcomes for creditors and debtors arising from a debt for equity swap.
Debt for Equity Swaps (44 kb)
09 Feb 2009 | Tax Briefs | Financial Services
TOFA: What you Need to Consider Now
A Bill containing the final stages of the taxation of financial arrangements (TOFA) reform project, was introduced into the House of Representatives on 4 December 2008. This Tax Brief provides an overview of the elections available within the regime.
TOFA: What you Need to Consider Now (53 kb)
29 Jan 2009 | Tax Briefs | Financial Services | Real Estate
TOFA for the Property Sector
After much delay, the regime for taxing financial arrangements (‘TOFA’) now seems likely to be passed early this year. TOFA can affect both the investments made in the property sector and the financing of those investments, but just how – and how much – activity in the property sector will be affected is neither obvious nor straightforward. This Tax Brief examines some of the issues that the TOFA regime will present for the property industry.
TOFA for the Property Sector (60 kb)
14 Aug 2008 | Tax Briefs | Financial Services
TOFA's Long March Continues
The TOFA journey took an important step with the announcement of optional and compulsory start dates, together with proposed TOFA/consolidation interactions. This Tax Brief examines these two recent developments.
TOFA's Long March Continues (43 kb)
07 Jun 2007 | Tax Briefs | Financial Services
Further TOFA Developments
This Tax Brief outlines the effects of two Treasury releases outlining further elements of the TOFA jigsaw puzzle covering details of interactions and proposed measures to address synthetic financial arrangements.
Further TOFA Developments (122 kb)
24 Jan 2007 | Tax Briefs | Financial Services
The Revised TOFA Regime
The Assistant Treasurer has released a second Exposure Draft of legislation for the taxation of financial arrangements. The new version fills in some of the gaps evident in the last version and changes some of the policy and legislative detail.
The Revised TOFA Regime (410 kb)
10 May 2005 | Tax Briefs | Financial Services | International
Further Changes to Foreign Exchange Rules
This Tax Brief looks at recently release regulations designed to facilitate translating foreign currency into either Australian dollars or into a taxpayer’s functional currency by permitting taxpayers to adopt exchange rates and computational methods which are not strictly in accordance with the dictates of the legislation.
Further Changes to Foreign Exchange Rules (122 kb)
02 Aug 2004 | Tax Briefs | Financial Services
Quiet Texan Drawl Puzzles Commissioner
This Tax Brief considers the cases of Rataplan Pty Ltd v FCT and its companion case, Westrac Equipment Pty Ltd v FCT which illustrate the inability of the tax law in force in 1991 to deal appropriately with related-party dealings producing what might be seen as mischievous tax results.
Quiet Texan Drawl Puzzles Commissioner (241 kb)
02 Dec 2003 | Tax Briefs | Financial Services | International
Forex Measures Enacted
This Tax Brief outlines the proposed introduction (as part of the TOFA project) of foreign exchange gain and loss measures which are intended to provide a single systematic regime for dealing with the conceptual issues that foreign exchange transactions raise.
Forex Measures Enacted (267 kb)