Background
On 8 April 2024, the Treasury Laws Amendment (Making Multinationals Pay Their Fair Share-Integrity and Transparency) Act 2024 (amendments to the Thin Capitalisation rules) received Royal Assent.
The ATO’s public consultation on potential public advice and guidance (PAG) topics, prioritisation and form arising from the amendments to the Thin Capitalisation rules was open from January 2024 to 30 April 2024.
In response to the ATO’s request for potential PAG topics, prioritisation and form, we received submissions from a variety of stakeholders including:
- Taxpayers
- Members of ATO stewardship groups (Large Business Stewardship Group (LBSG), National Tax Liaison Group (NTLG), Private Groups Stewardship Group (PGSG))
- Industry groups
- Tax training associations
- Tax advisory firms
Now that consultation has closed, feedback provided in submissions has informed what will be the ATO’s PAG priorities.
PAG topics and prioritisation
The following table provides a high level summary of the topics raised by stakeholders in consultation as matters that would, in their view, benefit from PAG.
Informed by stakeholder feedback, the table is presented in two parts.
- The first part contains the topics which we will resource progressing our views and developing PAG on as a matter of priority. As part of this, we will engage with stakeholders later this month (May 2024). We will also look to share indicative timeframes for key milestones (such as PAG drafting, consultation and completion).
- The second part contains other topics raised by stakeholders. Subject to identified need and the ATO’s overall PAG priorities, these topics may be considered at a later stage.
The ATO is also committed to updating the thin capitalisation guide on ato.gov.au to address non-interpretative operation of the amendments to the Thin Capitalisation rules. This guidance will be general in nature and we do not anticipate consultation will be undertaken on it prior to publication.
Number |
PAG topic |
Description |
---|---|---|
|
Restructures in response to the new law |
|
|
Third party debt test (TPDT) – key concepts |
Interpretive guidance on key aspects of the third-party debt conditions (for example, ‘minor or insignificant’ in 820-427A(3)(c))
|
|
Interaction of transfer pricing and the new thin capitalisation rules |
Compliance guidance to address concerns in applying existing PAG (e.g. Practical Compliance Guideline PCG 2017/4 ATO compliance approach to taxation issues associated with cross-border related party financing arrangements and related transactions)
|
Number |
PAG topic |
Description |
---|---|---|
|
TPDT – further key concepts |
|
|
Interaction of transfer pricing and the new thin capitalisation rules |
Ordering of transfer pricing and thin capitalisation provisions (e.g. updates to TR 2014/6) |
|
DDCR – key concepts |
|
|
'Debt deduction’ definition |
Expanded definition of ‘debt deduction’ to include amounts ‘economically equivalent to interest’
|
|
'Financial entity’ definition |
Narrowed definition of ‘financial entity’ |
|
Associate entity’ definition |
Applying the modified definition of ‘associate entity’ for purposes of the new rules |
|
Gateway issues |
Working out whether an entity is a general class investor |
|
Choices |
Making or revoking a thin capitalisation test choice |
|
EBITDA |
|
|
Group ratio |
Calculating the 'group ratio’ including identifying relevant financial statements
|
|
Other |
Documentation and evidentiary requirements |