Question 13

This question asks whether you had international related party dealings of a non-revenue (capital) nature, apart from the dealings covered by questions 5 to 11.

The dollar amounts or values asked for in this question are all based on your accounting records.

We expect the majority of international related party dealings entered into by taxpayers to come within the types of dealings covered by questions 5 to 11.

An international related party dealing that you included at questions 5 to 11 should not be included at this question, regardless of whether it was reported using tax or accounting figures.

Capital or revenue in nature?

Whether dealings are capital or revenue in nature is a matter to be decided based on the facts and circumstances of each case. The leading Australian case on this topic is Sun Newspapers Ltd and Associated Newspapers Ltd v. FC of T (1938) 61 CLR 337; 5 ATD 87.

This case established that expenditure incurred in establishing, replacing and enlarging the profit yielding structure (the business entity and structure) is of a capital nature and should be contrasted with working or operating expenses incurred to operate the business or profit yielding structure. The test laid down in the Sun newspapers case requires the following three factors to be considered and weighed in deciding whether expenditure is capital or of a capital nature:

• The nature of the benefit or advantage obtained or secured by the incurrence of the expenditure, for example, whether the expenditure secures an enduring benefit.
• The manner in which the benefit or advantage so obtained or secured is to be relied upon or enjoyed.
• The means adopted to obtain or secure the benefit or advantage.

There are many other decisions of the Australian courts applying these principles in Sun Newspapers to various cases. For more information, see ATO guidance such as taxation rulings. We strongly recommend that you obtain appropriate guidance or professional advice in relation to the particular facts and circumstances of your case.

If you had international related party dealings of a non-revenue (capital) nature, apart from the dealings covered in questions 5 to 11, answer Yes at A item 13 and complete the following.

Question 13a Disposal or acquisition of tangible property

Tangible property includes plant and equipment.

Item 13a is completed as follows in relation to your international related party dealings of a non-revenue (capital) nature involving disposal or acquisition of tangible property:

• At C, write the total consideration paid in respect of these international related party dealings of a non-revenue (capital) nature involving disposal or acquisition of tangible property.
• At D, write the total amount of consideration received in respect of these international related party dealings of a non-revenue (capital) nature involving disposal or acquisition of tangible property.
• At G, write the Appendix 10 code for the principal method you used for pricing these acquisitions or disposals involving disposal or acquisition of tangible property.
• At F, write the Appendix 9 code for the percentage of your international related party dealings of a non-revenue (capital) nature involving disposal or acquisition of tangible property for which you have documentation.
  
  Percentage of dealings with documentation refers to the aggregate dollar amount of transactions reported at this item for which you have relevant documentation expressed as a percentage of total dollar value of transactions reported at this item.

Question 13b Assignment of intellectual property

Assignment includes assignment in law or in equity, including assignment by declaration of trust.

Intellectual property includes:

• trademarks
• patents
• registered designs
• copyright
• other intellectual property or similar property or rights including rights granted or protected under foreign law
• interests in or rights granted in respect of any of the above, for example, a license to use a copyright.

Item 13b is completed as follows in relation to your international related party dealings of a non-revenue (capital) nature involving assignment of intellectual property:

• At C, write the total consideration paid in respect of these international related party dealings of a non-revenue (capital) nature involving assignment of intellectual property.
• At D, write the total amount of consideration received in respect of these international related party dealings of a non-revenue (capital) nature involving assignment of intellectual property.
• At G, write the Appendix 10 code for the principal method you used for pricing these international related party dealings involving assignment of intellectual property.
• At F, write the Appendix 9 code for the percentage of your international related party dealings of a non-revenue (capital) nature involving assignment of intellectual property for which you have documentation.
  
  Percentage of dealings with documentation refers to the aggregate dollar amount of transactions reported at this item for which you have relevant documentation expressed as a percentage of total dollar value of transactions reported at this item.

Question 13c Assignment of shares or other equity interests

Assignment includes assignment in law or in equity, including assignment by declaration of trust.

Equity interests include an equity interest under Division 974 and section 820-930 of the ITAA 1997. For more guidance on what is an equity interest under Division 974, refer to Guide to the debt and equity tests.

Item 13c is completed as follows in relation to your international related party dealings of a non-revenue (capital) nature involving assignment of shares or other equity interests:

• At C, write the total consideration paid in respect of these international related party dealings of a non-revenue (capital) nature involving assignment of shares or other equity interests.
• At D, write the total amount of consideration received in respect of these international related party dealings of a non-revenue (capital) nature involving assignment of shares or other equity interests.
• At G, write the Appendix 10 code for the principal method you used for pricing these international related party dealings involving assignment of shares or other equity interests.
• At F, write the Appendix 9 code for the percentage of your international related party dealings of a non-revenue (capital) nature involving assignment of shares or other equity interests for which you have documentation.
  
  Percentage of dealings with documentation refers to the aggregate dollar amount of transactions reported at this item for which you have relevant documentation expressed as a percentage of total dollar value of transactions reported at this item.

Question 13d Assignment of loans or debts (not liabilities)

Assignment includes assignment in law or in equity, including assignment by declaration of trust.

Loans or debts (not liabilities) include debt receivables and loan receivables.

Item 13d is completed as follows in relation to your international related party dealings of a non-revenue (capital) nature involving assignment of loans or debts (not liabilities):

• At C, write the total consideration paid in respect of these international related party dealings of a non-revenue (capital) nature involving assignment of loans or debts (not liabilities).
• At D, write the total amount of consideration received in respect of these international related party dealings of a non-revenue (capital) nature involving assignment of loans or debts (not liabilities).
• At G, write the Appendix 10 code for the principal method you used for pricing these international related party dealings involving assignment of loans or debts (not liabilities).
• At F, write the Appendix 9 code for the percentage of your international related party dealings of a non-revenue (capital) nature involving assignment of loans or debts (not liabilities) for which you have documentation.
  
  Percentage of dealings with documentation refers to the aggregate dollar amount of transactions reported at this item for which you have relevant documentation expressed as a percentage of total dollar value of transactions reported at this item.

Question 13e Other disposal or acquisition of intangible property

Other disposal or acquisition of intangible property includes the issue of new shares or other equity interests.

The issue of equity interests include the issue of an interest which is an equity interest under Division 974 and section 820-930 of the ITAA 1997. For more guidance on what is an equity interest under Division 974, refer to Guide to the debt and equity tests.

Item 13e is completed as follows in relation to your international related party dealings of a non-revenue (capital) nature involving other disposal or acquisition of intangible property:

• At C, write the total consideration paid in respect of these international related party dealings of a non-revenue (capital) nature involving other disposal or acquisition of intangible property.
• At D, write the total amount of consideration received in respect of these international related party dealings of a non-revenue (capital) nature involving other disposal or acquisition of intangible property.
• At G, write the Appendix 10 code for the principal method you used for pricing these international related party dealings involving other disposal or acquisition of intangible property.
• At F, write the Appendix 9 code for the percentage of your international related party dealings of a non-revenue (capital) nature involving other disposal or acquisition of intangible property for which you have documentation.
  
  Percentage of dealings with documentation refers to the aggregate dollar amount of transactions reported at this item for which you have relevant documentation expressed as a percentage of total dollar value of transactions reported at this item.

Question 13f R&D and overseas intangibles

This question aims to identify whether you have performed research and development (R&D) type activities for the benefit of a related party in another country where you have been remunerated for performing these activities at an amount based on the costs of these activities plus an agreed margin (cost plus basis). This includes expenses qualifying for the R&D tax incentive and all other R&D expenses which do not qualify for the R&D incentive.

The 2017 IDS did not include item 13f (R&D activities for the benefit of an overseas related party on cost-plus basis). If you performed R&D activities for the benefit of an overseas related party on a cost-plus basis, we understand that you may not have accounting systems which automatically collected and aggregated all the information required to complete all parts of item 13f for the first year based on the outputs from your accounting system alone.

If this is the case, complete item 13f using your current systems and make a best effort to estimate figures where you do not have records of the actual data.

Keep a record of:

• your determination of the best estimate the best estimate figures you provided at item 13f
• what data you used to make this estimate.

You are not required to send the record of your workings to us. However you must keep the record with other documentation for your tax return. For further information on record keeping, refer to Keeping your tax records.

If you have performed R&D for the benefit of a related party in another country where you have been remunerated on a cost plus basis, answer Yes at A item 13f.

If you answer Yes, you must specify the amount of your relevant R&D costs at C item 13f, and the amount of the cost plus margin received at D item 13f.

For information on the R&D incentive, see Research and development tax incentive.

For more information on transfer pricing and the cost plus method, see Chapter 3 of TR 97/20 Income tax: arm's length transfer pricing methodologies for international dealings.

Question 14

This question asks whether you have had any international related party dealings involving no payment or a non-monetary payment (as defined below). Information regarding the nature of these dealings and where they occurred will further assist us in identifying if there has been international related party dealings that give rise to a:

• transfer pricing risk (but would not be reported at other questions in the schedule due to the nature of the consideration being nil or non-monetary)
• a capital gains tax risk.

No payment

Where there has been no charge or other consideration payable for the provision of services, transfer of property or other benefit provided under an international related party dealing, then this would be taken to be a dealing involving no payment.

You are not required to report at this question any interest free loans disclosed at question 11.

You are not required to report transactions where you have received a benefit for no payment.

You must report transactions where you have provided a benefit for no payment.

Non-monetary payment

A dealing involving a non-monetary payment may be a barter, swap, bonus or discount, or any type of similar arrangement.

A non-monetary payment will generally include consideration that is not one of the following:

• monetary payment
• payment by cheque
• telegraphic and bank-to-bank transfer of funds.

Debt-for-equity swaps will be taken to be a non-monetary payment.

Capital or revenue in nature

See the instructions to question 13 for guidance on whether dealings are capital or revenue in nature.

If you had any international related party dealings involving no payment or a non-monetary payment, answer Yes at A item 14 and complete the following.

Item 14a is completed as follows in relation to your international related party dealings involving no payment:

• At B (in the column headed Capital), write the Appendix 2 country code to indicate the location of the related party for your international related party dealings of a non-revenue (capital) nature involving no payment. If you have had more than one particular type of international related party dealings of a non-revenue (capital) nature involving no payment, use the Appendix 2 country code for such type of dealings with the highest dollar value.
• At C (in the column headed Capital), write the Appendix 7 code to indicate the nature of the item subject of your international related party dealings of a non-revenue (capital) nature involving no payment. If you have had more than one particular type of international related party dealings of a non-revenue (capital) nature involving no payment, use the Appendix 7 code for the nature of the item for such type of dealings with the highest dollar value.
• At D (in the column headed Revenue), write the Appendix 2 country code to indicate the location of the related party for your international related party dealings of a revenue (non-capital) nature involving no payment. If you have had more than one particular type of international related party dealings of a revenue (non-capital) nature involving no payment, use the Appendix 2 country code for such type of dealings with the highest dollar value.
• At E (in the column headed Revenue), write the Appendix 7 code to indicate the nature of the item subject of your international related party dealings of a revenue (non-capital) nature involving no payment. If you have had more than one particular type of international related party dealings of a revenue (non-capital) nature involving no payment, use the Appendix 7 code for the nature of the item for such type of dealings with the highest dollar value.

Item 14b is completed as follows in relation to your international related party dealings involving a non-monetary payment:

• At B (in the column headed Capital), write the Appendix 2 country code to indicate the location of the related party for your international related party dealings of a non-revenue (capital) nature involving a non-monetary payment. If you have had more than one particular type of international related party dealings of a non-revenue (capital) nature involving a non-monetary payment, use the Appendix 2 country code for such type of dealings with the highest dollar value.
• At C (in the column headed Capital), write the Appendix 7 code to indicate the nature of the item subject of your international related party dealings of a non-revenue (capital) nature involving a non-monetary payment. If you have had more than one particular type of international related party dealings of a non-revenue (capital) nature involving a non-monetary payment, use the Appendix 7 code for the nature of the item for such type of dealings with the highest dollar value.
• At D (in the column headed Revenue), write the Appendix 2 country code to indicate the location of the related party for your international related party dealings of a revenue (non-capital) nature involving a non-monetary payment. If you have had more than one particular type of international related party dealings of a revenue (non-capital) nature involving a non-monetary payment, use the Appendix 2 country code for such type of dealings with the highest dollar value.
• At E (in the column headed Revenue), write the Appendix 7 code to indicate the nature of the item subject of your international related party dealings of a revenue (non-capital) nature involving a non-monetary payment. If you have had more than one particular type of international related party dealings of a revenue (non-capital) nature involving a non-monetary payment, use the Appendix 7 code for the nature of the item for such type of dealings with the highest dollar value.

 

 

Question 15

This question seeks information to assess the specific transfer pricing risk of Australian taxpayers receiving or paying incorrect or no recharge amounts for providing or receiving employee share-based remuneration to employees of non-resident subsidiaries. We want to ascertain the level of recharge amounts being received or paid by Australian taxpayers and the pricing methodology used in respect of these amounts.

The dollar amounts or values asked for in this question are all based on your income tax records.

Under employee shared-based remuneration plans, a multinational group may remunerate employees by providing phantom shares in the listed parent company of the group, shares, share options or share rights.

Recharge amount is the compensation you received or paid in return for providing the employees with share-based remuneration. The recharge amount does not include any compensation received or paid in relation to the costs of administering an employee share-based plan since this would be compensation for services that you would report at question 8.

Employees are individuals who provide personal services or labour to an entity and would be regarded as employees of that entity for legal or tax purposes. For example, employees would include the directors of a non-resident subsidiary.

Where an employee holds a position of employment in both an Australian taxpayer and a non-resident subsidiary of the taxpayer, consideration should be given to the 'capacity' in which the share-based remuneration is received. For example, where an individual is an employee of the Australian taxpayer and a director of a non-resident subsidiary, any share-based remuneration paid by the Australian taxpayer to the individual in their capacity as a director of the non-resident subsidiary would be included at this question. This accords with the approach taken in Article 16 of the OECD Model Tax Convention regarding the allocation of taxing rights (which provides that payments received by a resident of a contracting state in their capacity as a director of a company resident in the other contracting state may be taxed in that other state).

For more information about share-based remuneration plans for employees of non-resident subsidiaries, including application of the arm's length principle to arrive at an appropriate recharge amount, see OECD Tax Policy Studies No.11 (2005) – The Taxation of Employee Stock Options (particularly Chapter 4 - Impact on Transfer Pricing). You can buy this at oecdbookshop.orgExternal Link

To complete this question:

• identify the share-based employee remuneration provided to or received from international related parties
• determine if there is a recharge amount paid or received in relation to the share-based remuneration provided to your employees
• determine the total amount of the recharge amounts paid by you during the income year
• determine the total amount of the recharge amounts received by you during the income year.

If you did provide (or receive) share-based remuneration to any employees of an international related entity during the income year, answer Yes at A item 15 and complete the following:

• At C, write the total recharge amounts you claimed as deductions for the income year.
• At D, write the total recharge amounts you included in your assessable income for the income year.

Question 16

This question seeks information to understand whether there was a cost contribution arrangement for developing, producing or obtaining assets or rights with an international related party.

TR 2004/1 Income tax: international transfer pricing – cost contribution arrangements, paragraph 14 provides further detail on cost contribution arrangements. You should not include any cost contribution arrangements which are pure service arrangements, as described in TR 2004/1.

If you had a cost contribution arrangement for developing, producing or obtaining assets or rights with any international related parties, answer Yes at A item 16.

Question 17

This question seeks to identify significant restructures undertaken between Australian taxpayers and international related parties or your branch operations. For the purposes of this question we have adopted a wide meaning of restructuring which goes beyond the generally accepted financial definition.

Restructuring events for the purposes of this question, consistent with the definition in TR 2011/1, are arrangements whereby assets, functions or risks of a business are transferred between you and international related parties, or your branch operations. This may include:

• reorganisation of your structure resulting in the disposal or acquisition of entities or the change in ownership of entities
• establishing, expanding, downsizing, liquidating or relocating business operations or business lines, resulting in  
  • the acquisition or the disposal of assets or liabilities (tangible or intangible)
  • the transfer of functions or the significant modification of service arrangements between yourself and international related parties (for example, this may include transfer of agency, distribution, finance, information technology, insurance, logistics, marketing, sales, shared services, shipping, trading, transport and treasury functions)
  • the transfer of risks between yourself and international related parties
  • the increase or decrease of rights or obligations
   
• where there has been a change in the nature of the business carried on through your branch operations, for example, you have commenced or ceased to use your property in your branch operations or you have commenced or ceased to perform functions or services through your branch operations.

There are compliance risks associated with restructures, particularly those involving international related parties. In order to analyse the compliance risks of these restructures we need to understand the nature of restructuring undertaken by Australian taxpayers with international related parties.

This question also collects information about restructures involving your branch operations. Aspects of these restructures may be reflected in internally recorded 'dealings' with your branch that record the attribution of your income and expenditure to the branch operations. For more information, see the Introduction of these instructions.

The dollar amounts or values asked for in this question are all based on your accounting records.

We recognise that this question asks you to determine a value for each restructure, even though there may not be payment of consideration in respect of some transactions forming part of the restructure. For these transactions we ask you to make a reasonable determination of the value. We do not expect you to obtain a formal valuation for this purpose.

For the purpose of this question the most material restructuring events aggregates two elements:

• The capital value of each restructure. This will be the value of the restructure shown at D in question 17a and should be the aggregated value of the restructure in terms of acquiring or disposing of assets, liabilities, functions, risks, rights or obligations.
• The gross impact on transactions reflected in your income and expenditure for international related party dealings, including in the next five years, resulting from each restructure.

To complete this question:

• disregard all restructures where there is no international related party or branch operation involvement
• determine the three most material restructure events.

If during the income year you had restructuring event(s) involving international related parties or branch operations, answer Yes at A item 17 and complete the required fields.

At item 17a:

• Identify the principal international related party involved in each of the three restructures. At C, select branch B or entity E. for the type of related party involved in the restructure.
• At D, select the code at Appendix 11 which indicates the relevant capital value of the first restructure listed, then determine the aggregated value shown in your accounting records during the income year for each remaining restructure event in terms of acquiring or disposing of assets, liabilities, functions, risks, rights or obligations.
• At E, write the Appendix 7 code that best describes the nature of the restructure in terms of the asset, liability, function, risk, right or obligation.
• At G, specify the code of the country in which the principal international related party to the relevant restructure was located, or the foreign country relevant to your branch operations.
• At F, identify the code for the percentage of dealings for which you have documentation. Percentage of dealings with documentation refers to the aggregate dollar amount of transactions reported at this question for which you have relevant documentation expressed as a percentage of total dollar value of transactions reported at this question.
• At H, write a brief description of the main elements of the restructure; the description should include both the initial transfer of assets, liabilities, functions, risks, rights or obligations and the resulting change in international related party dealings, including in future years. In the example below, the description could be 'ceased New Zealand branch operations, dealing in derivative contracts continued with other world-wide associates'. The description should be limited to 200 characters.
• At I, indicate if there was a contemporaneous, professional valuation study or transfer pricing analysis of the restructuring event undertaken. Transfer pricing analysis refers to transfer pricing documentation as discussed in Appendix 9.

At item 17b, answer Yes if you revalue any assets following the restructuring events involving international related parties or your branch operations.