Australia: MLI, hybrid mismatch, MITs and staple structures, cross-border financing and reduced company tax rate
International Tax Review is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Australia: MLI, hybrid mismatch, MITs and staple structures, cross-border financing and reduced company tax rate

Sponsored by

Sponsored_Firms_piper.png
intl-updates-small.jpg

In recent weeks, we have seen important Australian tax developments that are relevant to multinationals and inbound investments. With many initiatives taking effect as early as January 1 2019, multinationals should consider the potential impact on their inbound and outbound Australian investments.



Legislation enabling the OECD's Multilateral Instrument

On August 24 2018, Australia enacted legislation that allows the OECD's Multilateral Instrument (MLI) to have force of law in Australia.

The MLI will have effect once ratification and diplomatic procedures are completed by Australia and each treaty country partner.

The MLI would implement the OECD's BEPS Action Plan into Australia's double tax treaties, subject to specific reservations expressed by the Australian government (such as those on specific permanent establishment articles).

In effect, the enabling legislation means that Australia's double tax treaties could be amended effective from as early as January 1 2019 (for example, for certain withholding taxes), subject to the formal procedures being completed.

Legislation for hybrid mismatch rules

On August 24 2018, Australia enacted its hybrid mismatch rules.

The rules implement BEPS Action 2, subject to Australian specific amendments. Specifically:

  • The rules apply to mismatches in Australian and foreign tax outcomes arising from a hybrid financial instrument, a hybrid payer, a reverse hybrid, a branch hybrid, a deducting hybrid an imported hybrid; and

  • In addition, the rules include a targeted integrity rule, which aims to prevent multinationals from bypassing the hybrid mismatch rules by using interposed country conduit type vehicles.

The rules will apply to income years starting on or after January 1 2019.

Managed investment trusts and stapled structures – integrity measures

On August 7 2018, the Australian government released further exposure draft legislation and explanatory materials affecting managed investment trusts (MITs) and stapled structures.

The further exposure draft legislation imposes a non-arm's length income rule and a statutory cap, which could apply to some cross-staple payments during the seven or 15-year transitional period in which a structure qualifies for the 15% concessional MIT withholding tax rate.

Cross-border financing

On August 1 2018, the Australian government and the Australian Taxation Office (ATO) released a number of materials relevant to cross-border financing:

  • Draft legislation and draft taxation determination TD 2018/D4, which in effect would require entities to value its assets and debt capital with their accounting values, for the purposes of Australia's thin capitalisation rules;

  • Draft legislation, which is intended to ensure that foreign controlled Australian consolidated entities and groups with foreign operations to be treated as both outward and inward investing entities, for the purposes of the thin capitalisation rules;

  • Draft taxation determination TD 2018/D5, which identifies the types of costs which are debt deductions that are subject to Australia's thin capitalisation rules; and

  • Updated practical compliance guideline PCG 2017/4 (the ATO's tax compliance guidelines on cross-border financing), which has been updated to include a draft schedule to set out specific risk indicators for related-party derivative arrangements that are used to hedge or manage the economic exposure of a company or group of companies.

New tests for reduced company tax rate

On August 31 2018, Australia enacted legislation that amends the qualifying rules for the reduced company tax rate.

In effect, a corporate tax entity will qualify for the lower company tax rate of 27.5% (rather than 30%) for an income year if:

  • No more than 80% of its assessable income for that income year is passive income; and

  • The aggregated turnover – of the corporate tax entity, its affiliates and its connected entities – is less than the aggregated turnover threshold (A$50 million for the 2018-19 income year) for that income year.

These changes apply from the 2017-2018 income year.

more across site & bottom lb ros

More from across our site

KPMG Netherlands’ former head of assurance also received a permanent bar and $150,000 fine; in other news, asset management firm BlackRock lost a $13.5bn UK tax appeal
The new, fully integrated office will also offer M&A, dispute resolution, IP and corporate tax services
The new guidance concerns a recent 1% excise tax on the repurchases of corporate stock for both US and certain foreign companies
Interpath has hired a managing partner from rival accounting firm BDO to lead the new operation
Survey results of over 28,000 in-house lawyers reveal that American in-house counsel place a higher value on the reputation of external advisers than their peers elsewhere
In an exclusive interview with ITR, Andrew Leigh also endorsed new legislation designed to prevent multinationals using complex corporate structures to reduce taxes
Nick Crama and Parwesh Bissumbhar, senior director and manager respectively at Alvarez & Marsal, outline practical advice for real estate managers to comply with DAC6 regulations
The finalists for the 13th annual awards revealed
Survey results of over 25,000 in-house lawyers show competitive pricing and transparency in billing practices can help firms win clients
The new tech partnership will assist clients worldwide with pillar two; in other news, UK accountancy firm MHA completes a regional merger
Gift this article