Senate

Explanatory Memorandum

(Circulated by the authority of the Treasurer, the Hon Wayne Swan MP)

Glossary

The following abbreviations and acronyms are used throughout this explanatory memorandum.

General outline and financial impact

Amendments 1 to 7 to Schedule 3 - Managed investment trusts: capital treatment and taxation of carried interests

Amendments 1 to 7 amend Schedule 3 to the Tax Laws Amendment (2010 Measures No. 1) Bill 2010, including some technical corrections.

Certain provisions dealing with trusts that are to be treated in the same way as a managed investment trust (MIT) will be removed. As a consequence of these amendments a 'closely held' test in relation to trusts that are treated in the same way as a MIT will no longer be required. Therefore, the closely held trust provision in Schedule 3 will also be removed.

It is proposed that trusts, that would have been treated in the same way as a MIT under the removed provisions, will be covered by proposed changes to the general definition of 'managed investment trust' in Subdivision 12-H of Schedule 1 to the Taxation Administration Act 1953, to be introduced into Parliament at a later date.

Date of effect: The changes made by Amendments 2, 3, 5, 6 and 7 will apply from the 2008-09 income year.

Amendments 1 and 4 simply remove provisions from Schedule 3 to the Tax Laws Amendment (2010 Measures No. 1) Bill 2010.

Proposal announced: These amendments were announced in the Assistant Treasurer's Media Release No. 020 of 10 February 2010 and released for public consultation on 16 April 2010.

Financial impact: Nil.

Compliance cost impact: Low.

Amendments 8 to 18 to Schedule 5 - Consolidation

Amendments 8 to 18 amend various Parts of Schedule 5 to the Tax Laws Amendment (2010 Measures No. 1) Bill 2010, which amends the consolidation regime. The amendments:

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clarify the treatment of the tax cost setting amount allocated to assets that are rights to future income in Part 1;

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ensure that the amendments in Part 16, which make it easier for widely held companies to satisfy the loss multiplication rules, apply appropriately to foreign owned consolidated groups;

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alleviate concerns that the amendments in Part 18, which relates to consolidation choices, could have an adverse retrospective impact on taxpayers in some very limited circumstances; and

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make some technical corrections.

Date of effect: The amendments apply from the date of effect of the relevant Parts of Schedule 5 to the Bill.

Proposal announced: The amendments have not previously been announced.

Financial impact: The explanatory memorandum to the Bill states that the amendments in Schedule 5 to the Bill, other than Part 20, have a small but unquantifiable cost to revenue. Since the Bill was introduced, more information has become available which impacts on the financial impact of the amendments in Schedule 5.

First, it has become apparent that the amendments in Part 1 (use of the tax cost setting amount) will have a significant but unquantifiable cost to revenue. Amendments 8 to 12 will reduce that revenue impact. However, the revenue impact will still be significant.

Second, it also has become apparent that the amendments in Part 20 (non-membership equity interests) are expected to have a greater revenue gain than was previously expected. The revenue gain, as revised, is expected to be:

Compliance cost impact: Low.

Chapter 1 - Amendments 1 to 7 to Schedule 3 - Managed investment trusts: capital treatment and taxation of carried interests

Explanation of amendments

Amendment 1

1.1 Amendment 1 removes sections 275-5 and 275-10 of item 4 in Schedule 3 to the Tax Laws Amendment (2010 Measures No. 1) Bill 2010. These provisions would have treated certain widely held trusts (including certain wholesale trusts and certain Government-owned entities) in the same way as a managed investment trust (MIT).

1.2 Broadly, as a consequence of Amendment 1, an Australian resident trust will be a MIT if it meets the general definition of 'managed investment trust' in Subdivision 12-H of Schedule 1 to the Taxation Administration Act 1953 (TAA 1953) or will be treated in the same way as a MIT if every member of the trust is a MIT.

1.3 Trusts that would have been treated in the same way as a MIT under the removed provisions will now be covered by proposed changes to the general definition of 'managed investment trust' in Subdivision 12-H of Schedule 1 to the TAA 1953, to be introduced into Parliament at a later date.

Amendment 4

1.4 Amendment 4 removes section 275-25 of item 4 in Schedule 3 to the Tax Laws Amendment (2010 Measures No. 1) Bill 2010. Under proposed section 275-25, a trust would not have been treated in the same way as a MIT in relation to an income year, if it was a closely held trust at any time during the income year.

1.5 As a consequence of Amendment 1 a 'closely held' test in relation to trusts that are treated in the same way as a MIT is no longer required. Such a test is to be incorporated with the proposed changes to the general definition of 'managed investment trust' in Subdivision 12-H of Schedule 1 to the TAA 1953, to be introduced into Parliament at a later date.

Amendments 2, 3, 5, 6 and 7

1.6 These amendments make minor technical corrections to Schedule 3.

1.7 Amendments 2 and 3 replace paragraphs 275-15(1)(b) and 275-20(b) and (c) in item 4 of Schedule 3. As a consequence of these amendments the provisions will refer to a trust being 'treated in the same way as a MIT' through the operation of Subdivision 275-A of the Income Tax Assessment Act 1997.

1.8 Amendments 5 and 7 replace references to 'year of income' with 'income year' in paragraphs 275-110(1)(a) and (b) in item 4 of Schedule 3.

1.9 Amendment 6 inserts 'of Part III' after 'Division 6C' in paragraph 275-110(1)(b) in item 4 of Schedule 3.

Chapter 2 - Amendments 8 to 18 to Schedule 5 - Consolidation

Explanation of amendments

Amendments 8 to 12

2.1 Part 1 of Schedule 5 to the Tax Laws Amendment (2010 Measures No. 1) Bill 2010 contains amendments to clarify the use of the tax cost setting amount allocated to an asset under the consolidation tax cost setting rules.

2.2 Amendment 8 inserts new item 3A into Part 1 of Schedule 5 to add a reference to new subsection 701-55(5C) of the Income Tax Assessment Act 1997 (ITAA 1997) in subsection 701-58(2).

2.3 Item 4 of Part 1 of Schedule 5 inserts, among other things, new sections 716-405 and 716-410 into the ITAA 1997. Those sections specify the treatment of the tax cost setting amount allocated to rights to future income held by a joining entity.

2.4 Amendments 8, 11 and 12 clarify the circumstances in which an asset is covered by section 716-410.

2.5 Amendment 8 will insert new section 701-90. That section clarifies that certain valuable rights are treated as separate assets for consolidation purposes. This will ensure that the asset will be allocated a tax cost setting amount under the consolidation tax cost setting rules.

2.6 A valuable right (including a contingent right) will be treated as a separate asset under subsections 701-90(1) and (2) if:

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the valuable right is a right to receive an amount for:

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the performance of work or services; or

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the provision of goods (other than trading stock);

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the valuable right forms part of a contract or agreement; and

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the market value of the valuable right (taking into account all the obligations and conditions relating to the right) is greater than nil.

2.7 When a valuable right is treated as a separate asset under subsection 701-90(2), all the obligations and conditions relating to that valuable right must be taken into account for the purpose of working out the market value of that separate asset (paragraph 701-90(4)(a)).

2.8 If the valuable right forms part of a broader contract or agreement that includes one or more other rights that have a market value of greater than nil, then that contract or agreement (excluding the valuable right that is covered by subsection 701-90(1)) is also treated as a separate asset (subsection 701-90(3)).

2.9 When a contract or agreement (excluding the valuable right) is treated as a separate asset under subsection 701-90(3), all the obligations and conditions relating to each right (other than the valuable right) that forms part of the contract or agreement must be taken into account for the purpose of working out the market value of that separate asset (paragraph 701-90(4)(b)).

2.10 The purpose of limiting the assets that are covered by subsection 701-90(1) to a right to receive an amount for the performance of work or services, or the provision of goods (other than trading stock) is to ensure that the subsection applies only to rights that result in the derivation of active business or trading income.

2.11 Rights which result in the derivation of passive income that is not part of an entity's ordinary business operations are not covered by subsection 701-90(1). Examples of such rights include:

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rights to income under a leasing agreement;

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rights to future interest income;

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rights to an annuity under an annuity contract; and

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rights to royalty income.

2.12 For tax cost setting purposes, the relevant asset of such passive income rights will generally be the underlying plant, improvement, real property, cash or intellectual property asset that gives rise to the right.

2.13 Amendments 11 and 12 modify section 716-410. As a consequence, section 716-410 will cover an asset held by a joining entity at a particular time only if:

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the asset is a valuable right covered by subsection 701-90(1), and is therefore treated as a separate asset under subsection 701-90(2);

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the asset is held by an entity just before the time that it becomes a subsidiary member of a consolidated group;

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it is reasonable to expect that an amount attributable to the asset will be included in assessable income after the joining time; and

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Division 230 does not apply in relation to the asset (disregarding section 230-455).

2.14 The effect of paragraph 716-410(d) is to ensure that section 716-410 does not cover an asset that is a financial arrangement which comes within the scope of Division 230. This includes an asset that is a financial arrangement held by a joining entity which is not covered by Division 230 because of the operation of the Division 230 thresholds tests.

2.15 Note that paragraphs 2.3 to 2.14 effectively replace paragraphs 5.33, 5.35 and 5.36 of the explanatory memorandum to the Bill.

2.16 Amendments 9 and 10 modify the amount of the tax cost setting amount that can be deducted in an income year. Consequently, unless paragraph 716-405(2)(b) applies, the amount of the deduction is the lesser of:

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the unexpended tax cost setting amount for the asset for that income year; and

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the unexpended tax cost setting amount for the asset for the first income year ending after the joining time, divided by the lesser of:

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10; or

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if the contract or agreement giving rise to the valuable right mentioned in paragraph 716-410(a) is for a specified period - the number of days in the period between the joining time and the end of that specified period, divided by 365 and rounded upwards to the nearest whole number.

2.17 The effect of Amendments 9 and 10 is to spread the deduction for the tax cost setting amount allocated to an asset that is a valuable right covered by section 716-410:

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if the contract or agreement giving rise to the valuable right is for a specified period that is less than 10 years - over that specified period; or

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if the contract or agreement giving rise to the valuable right has no specified period or is for a specified period of 10 years or more - over 10 years.

2.18 However, if it reasonable to expect that no amount will be included in the assessable income of an entity that is qualified to deduct an amount under section 716-405 for any later income year, the balance of the unexpended tax cost setting amount can be deducted in that year (paragraph 716-405(2)(b)).

2.19 As a consequence of these amendments, Examples 5.7, 5.8, 5.9 and 5.11 of the explanatory memorandum to the Bill are replaced with the following examples.

2.20 Example 5.10 of the explanatory memorandum no longer applies and has not been replicated. That example concerned a right of a retirement village operator to deferred management fees. This depends on the terms of the contract between the operator and the retirement village resident.

2.21 As there are many different contractual arrangements offered by retirement village operators, the basis on which deferred management fees may arise also varies widely.

2.22 Whether a right to deferred management fees is an asset covered by subsection 701-90(1) will depend on the facts (including the terms of the particular contract) in each case.

Example 2.1 : Right to future income under a long term construction contract

This example replaces Example 5.7 of the explanatory memorandum.

Head Co acquires all of Company J's membership interests on 1 July 2010. Consequently, Company J joins Head Co's consolidated group.

Company J has a partially completed construction contract at the joining time - that is, broadly, it has partially performed some work under the contract that has not yet been completed to a stage where a recoverable debt has arisen. The remaining term of the contract at the joining time is 12 years.

For accounting purposes, Company J has estimated the amount of partly earned unbilled income as $15,000.

Substantial gross revenues are expected to be generated under the contract with an estimated profit over the period of the contract of $500,000.

Taxation Ruling TR 2004/13 addresses the question of what is an asset for the purposes of the tax cost setting rules. Section 701-90 also specifies that a valuable right to receive an amount for the performance of work or services or the provision of goods (other than trading stock) is to be treated as a separate asset for the purpose of those rules.

The construction contract includes a right to receive an amount for the performance of work. This is the only right of any market value under the contract. Therefore, the construction contract will be an asset that is covered by subsection 701-90(1).

In working out the market value of the asset, any obligations and conditions relating to the right must be taken into account. In this regard, a valuer will typically have regard to a number of factors in determining the market value of the asset, such as:

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the value of future work yet to be performed;

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the remaining life of the asset;

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forecast revenue;

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the cost and charges of other assets that are related to the work that is yet to be performed; and

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appropriate discount rates.

Having regard to these factors, the market value of the construction contract is determined to be $215,000.

The construction contract is a reset cost base asset to which section 705-40 applies. The tax cost setting amount allocated to the asset under the tax cost setting rules is $180,000.

Section 716-410 covers the asset because:

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the asset is a valuable right covered by subsection 701-90(1);

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it is reasonable to expect that an amount attributable to the asset will be included in assessable income after the joining time; and

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the asset is not a financial arrangement that comes within the scope of Division 230 (disregarding section 230-455).

Therefore, Head Co can deduct the tax cost setting amount for the right under the construction contract under section 716-405.

The unexpended tax cost setting amount for the asset (worked out under subsection 716-405(4)) is $180,000.

As the remaining term of contract at the joining time exceeds 10 years, the amount that can be deducted under section 716-405 in the 2010-11 income year is $18,000 ($180,000/10). This amount can also be deducted in each of the following nine income years.

If the contract is completed or comes to an end in less than 10 years, then the balance of the unexpended tax cost setting amount would generally be deductible under section 716-405 at that time.

Taxation Ruling IT 2450 specifies two methods that are acceptable for accounting for the taxable income from long-term construction contracts - the basic approach and the estimated profits basis. The amount that can be deducted under section 716-405 is the same for both methods.

Example 2.2 : Right to receive trailing commissions

This example replaces Example 5.8 of the explanatory memorandum.

Head Co acquires all of Company J's membership interests on 1 July 2010. Consequently, Company J joins Head Co's consolidated group.

Company J is a mortgage broker and receives commission income from various finance companies on customer loans written. The commission income is of two types:

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a single upfront commission when the customer loan settles, calculated as a percentage of the loan amount; and

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ongoing trailing commissions, which continue for the life of the loan calculated as a percentage of the customer loan balance at the end of each income year.

Under an agreement between Company J and Finance Co, Company J expects to receive trailing commission income from loans written in the 2008-09 income year.

Although no recoverable debt exists at the joining time, it is reasonable to expect that trailing commissions of $40,000 will be received during the 2010-11 and 2011-12 income year ($20,000 per year) from loans written for Finance Co in the 2008-09 income year.

Taxation Ruling TR 2004/13 addresses the question of what is an asset for the purposes of the tax cost setting rules. Section 701-90 also specifies that a valuable right to receive an amount for the performance of work or services or the provision of goods (other than trading stock) is to be treated as a separate asset for the purpose of those rules.

If, applying the principles in Taxation Ruling TR 2004/13 the commission agreement is identified as an asset, the right to receive trailing commissions from Finance Co will be covered by subsection 701-90(1) and therefore treated as a separate asset. This is because it is a right to receive an amount for the performance of mortgage broking services (the writing of loans).

The right to receive trailing commissions is the only right of any market value under the commission agreement with Finance Co. Therefore, the right will be an asset that is covered by subsection 701-90(1).

In working out the market value of the asset, any obligations and conditions relating to the right must be taken into account. Taking these things into account, the market value of the commission contract is determined to be $30,000.

The commission agreement is a reset cost base asset to which section 705-40 applies. The tax cost setting amount allocated to the asset under the tax cost setting rules is $30,000.

Section 716-410 covers the asset because:

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the asset is a valuable right covered by subsection 701-90(1);

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it is reasonable to expect that an amount attributable to the asset will be included in assessable income after the joining time; and

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the asset is not a financial arrangement that comes within the scope of Division 230 (disregarding section 230-455).

Therefore, Head Co can deduct the tax cost setting amount for the commission agreement under section 716-405.

The unexpended tax cost setting amount for the asset (worked out under subsection 716-405(4)) is $30,000.

The remaining term of commission agreement at the joining time is dependant on how long the customer continues to hold the loan, and therefore is unknown. Consequently, the amount that can be deducted under section 716-405 in the 2010-11 income year is $3,000 ($30,000/10). This amount can also be deducted in each of the following nine income years.

If the commission agreement is completed or comes to an end in less than 10 years, then the balance of the unexpended tax cost setting amount would generally be deductible under section 716-405 at that time.

Example 2.3 : Land development agreement

This example replaces Example 5.9 of the explanatory memorandum.

Head Co acquires all of Company J's membership interests on 1 July 2010. Consequently, Company J joins Head Co's consolidated group.

Company J is a land development company that has entered into an agreement with a land owner to develop and sell land to customers as the owner's agent. Under the agreement, Company J is entitled to receive a proportion of the land sale proceeds as its fee. The remaining term of the agreement at the joining time is eight years.

Taxation Ruling TR 2004/13 addresses the question of what is an asset for the purposes of the tax cost setting rules. Section 701-90 also specifies that a valuable right to receive an amount for the performance of work or services or the provision of goods (other than trading stock) is to be treated as a separate asset for the purpose of those rules.

The development agreement includes a right to receive an amount for the performance of work (being the development and sale of land). This right is the only right of any market value under the development agreement. Therefore, the right under the development agreement will be an asset that is covered by subsection 705-90(1).

In working out the market value of the asset, any obligations and conditions relating to the right must be taken into account. Taking these things into account, the market value of the development agreement is determined to be $6 million.

The development agreement is a reset cost base asset to which section 705-40 applies. The tax cost setting amount allocated to the asset under the tax cost setting rules is $5 million.

Section 716-410 covers the asset because:

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the asset is a valuable right covered by subsection 701-90(1);

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it is reasonable to expect that an amount attributable to the asset will be included in assessable income after the joining time; and

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the asset is not a financial arrangement that comes within the scope of Division 230 (disregarding section 230-455).

Therefore, Head Co can deduct the tax cost setting amount for the right under the development agreement under section 716-405.

The unexpended tax cost setting amount for the asset (worked out under subsection 716-405(4)) is $5 million.

As the remaining term of development agreement at the joining time is eight years, the amount that can be deducted under section 716-405 in the 2010-11 income year is $625,000 ($5m/8). This amount can also be deducted in each of the following seven income years.

If the development agreement is completed or comes to an end in less than eight years, then the balance of the unexpended tax cost setting amount would generally be deductible under section 716-405 at that time.

Example 2.4 : Rights to unbilled income for the supply of gas

This example replaces Example 5.11 of the explanatory memorandum.

Company J carries on the business of supplying gas to its customers (being both domestic and commercial gas consumers) in very similar circumstances to those in FC of T v Australian Gas Light Co 83 ATC 4800; (1983) 15 ATR 105.

The company has an agreement with each of its customers to supply gas. In respect of its domestic customers each agreement, has a term of three months, equating to Company J's quarterly billing cycle.

In its profit and loss statement for the income year ended 30 June 2010, Company J recorded unbilled gas income of $25,000 for gas supplied to domestic customers as at the 30 June 2010. Its balance sheet contained an unbilled gas asset of the same amount. The unbilled gas income is recognised as income for accounting purposes but has not yet been recognised as assessable income for income tax purposes in accordance with Taxation Ruling No. IT 2095.

On 1 July 2010, Head Co acquires all of Company J's membership interests. As a result, Company J joins Head Co's consolidated group.

Taxation Ruling TR 2004/13 addresses the question of what is an asset for the purposes of the tax cost setting rules. Section 701-90 also specifies that a valuable right to receive an amount for the performance of work or services or the provision of goods (other than trading stock) is to be treated as a separate asset for the purpose of those rules.

The domestic customer agreements include a right to receive an amount for the provision of goods, other than trading stock (being the supply of gas). This is the only right of any market value under the agreements. Therefore, the domestic customer agreements will be assets that are covered by subsection 705-90(1).

The asset recognised for tax cost setting purposes is each domestic customer agreement in respect of which the unbilled gas has been supplied.

In working out the market value of the asset, any obligations and conditions relating to the right must be taken into account. Taking these things into account, these agreements collectively have a market value of $25,000, which equates to the value of the gas supplied but not yet billed as at the joining time.

Each customer agreement is a reset cost base asset to which section 705-40 applies. The tax cost setting amount allocated in respect of all the domestic customer agreements under the tax cost setting rules is $20,000.

Section 716-410 covers the asset because:

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the asset is a valuable right covered by subsection 701-90(1);

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it is reasonable to expect that an amount attributable to the asset will be included in assessable income after the joining time; and

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the asset is not a financial arrangement that comes within the scope of Division 230 (disregarding section 230-455).

Therefore, Head Co can deduct the tax cost setting amount for the domestic customer agreements under section 716-405.

The unexpended tax cost setting amount for the domestic customer agreements (worked out under subsection 716-405(4)) is $20,000.

As the remaining term of contract of each domestic customer agreement at joining time is less than three months, the amount that can be deducted under section 716-405 in the 2010-11 income year in respect of these agreements is $20,000.

Amendment 13

2.23 Amendment 13 modifies the time for making a choice to apply the transitional rule in item 8 of Part 1 of Schedule 5 to the Bill (Use of the tax cost setting amount). The transitional rule allows the head company of a consolidated group to make a choice to preserve the pre-capital gains tax treatment of an asset that is a foreign currency trade receivable prior to the withdrawal of Draft Taxation Determination TD 2004/D80.

2.24 Amendment 13 allows the choice to be made on or before 30 June 2011 or within such further time allowed by the Commissioner of Taxation (Commissioner).

Amendment 14

2.25 Amendment 14 modifies item 84 in Part 7 of Schedule 5 to the Bill (Leaving time liabilities) so that the amendment to paragraph 713-265(4)(a) appropriately refers to a partnership (rather than a leaving entity).

Amendments 15 to 17

2.26 Part 16 of Schedule 5 to the Bill (Loss multiplication rules for widely held companies) amends the inter-entity loss multiplication rules to make the rules easier to apply for widely held companies. In the case of a multiple entry consolidated group (MEC group), the amendments in Part 16 apply when the foreign top company of the MEC group is a widely held company.

2.27 Amendments 15 to 17 modify Part 16 so that the amendments in Part 16 apply appropriately to the head company of a consolidated group that is wholly owned by a widely held foreign parent company.

2.28 Amendment 15 makes a consequential amendment to the note in section 715-230.

2.29 Amendment 16 inserts section 715-265, which modifies the operation of the inter-entity loss multiplication rules (Subdivision 165-CD) where:

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the head company of a consolidated group is also an eligible tier-1 company of a foreign top company ; and

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the foreign top company is a widely held company.

2.30 In these circumstances, the head company of the consolidated group will not have a relevant equity interest or relevant debt interest in a loss company at a particular time if the top company does not have such an interest at that time.

2.31 Amendment 17 modifies section 715-610 so that inter-entity losses are cancelled if, at some time during the ownership period when the owner owned the realised interest:

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the realised interest was an equity or loan interest, an indirect equity or loan interest, or an external indirect equity or loan interest in the head company of the group;

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the owner was not a member of the group; and

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the head company was an eligible tier-1 company of a top company.

2.32 Amendment 17 also makes some consequential amendments to:

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the note in section 715-450;

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the heading to Subdivision 715-H; and

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paragraph 715-610(2)(d) and subsection 715-610(3).

Amendment 18

2.33 Amendment 18 modifies item 193 in Part 18 of Schedule 5 to the Bill (Choice to consolidate). The amendments in that Part apply from 1 July 2002.

2.34 However, to ensure that no detriment arises as a result of the retrospective application of the amendments in Part 18, taxpayers can make a choice to apply the existing law before 10 February 2010 (that is, the date of introduction of the Bill). This choice must be made in writing on or before 30 June 2014 or within such further time allowed by the Commissioner.

2.35 If a taxpayer makes a choice to apply the law that existed before 10 February 2010, any discretions available to the Commissioner under that law may also be applied.