Law Companion Ruling

LCR 2018/D7

Base rate entities and base rate entity passive income

• Please note that the PDF version is the authorised consolidated version of this ruling and amending notices.
  This document has been finalised by LCR 2019/5.

What this draft Ruling is about

1. This draft Ruling considers the Treasury Laws Amendment (Enterprise Tax Plan Base Rate Entities) Act 2018 which amends the law to limit access to the lower corporate tax rate. From the 2017-18 income year a corporate tax entity must be a ' base rate entity ' to be taxed at the lower rate. This Act also makes changes to how a corporate tax entity calculates the amount of a franking credit it may attach to a frankable distribution.

2. This draft Ruling provides advice on:

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the general scheme of the new law

•

what amounts of assessable income are ' base rate entity passive income ' (BREPI)

•

the meaning of rent, interest and when a share of net income of a trust or partnership is referable to an amount of BREPI, and

•

how to calculate a corporate tax entity's corporate tax rate for imputation purposes and work out the maximum amount of the franking credit it may attach to frankable distributions.

3. This draft Ruling does not provide guidance on terms and concepts where there is existing ATO guidance on their meaning and the context of the law doesn't suggest a different meaning. This is summarised in Appendix 1 of this draft Ruling.

4. All legislative references in this draft Ruling are to the Income Tax Rates Act 1986 (ITRA 1986) unless otherwise specified.

Date of effect

5. When finalised, this Ruling will be a public ruling, effective from the application date, which is from the 2017-18 year of income and later years of income.

General scheme

6. Under the new law, a corporate tax entity will be taxed at the lower corporate tax rate if it is a base rate entity. A corporate entity will be a base rate entity if:

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no more than 80% of its assessable income is BREPI^[1], and

•

its aggregated turnover^[2] is less than the relevant threshold ($25 million in the 2017-18 income year; $50 million from the 2018-19 income year).^[3] A corporate tax entity's aggregated turnover is the sum of their ordinary income and the ordinary income of any connected or affiliate entity.

7. Eligibility for the lower corporate tax rate depends on an entity's BREPI and aggregated turnover in an income year. A corporate tax entity's tax rate may change if there are fluctuations in either their BREPI, as a percentage of their assessable income, or their aggregated turnover. The Commissioner does not have a discretion to allow an entity to be a base rate entity in an income year, if its BREPI is more than 80% of its assessable income or its aggregated turnover exceeds the applicable threshold in that income year.

Base rate entity passive income

8. The types of income that are BREPI are listed in section 23AB. Table 1 summarises the different forms of income that are BREPI and whether they are defined terms.

Table 1 - Types of base rate entity passive income

Interest (or payments in the nature of interest)

9. Interest (or payments in the nature of interest) is BREPI^[18], except in the circumstances outlined in Table 1.

What is interest?

10. Interest means 'the return, consideration, or compensation for the use or retention by one person of a sum of money belonging to, or owed to, another, and that interest must be referable to a principal'.^[19]

Payments in the nature of interest

11. Payments in the nature of interest must have the character of return or profit to the lender for the use of money belonging to, or owed to another.^[20] Whether a payment has this character turns on its substance, no matter how it is calculated.^[21] For example, payments are not in the nature of interest if they are payable under a clause in a contract that requires a borrower to pay a lender's costs and liabilities a lender incurs to establish a loan, or under an indemnification clause to pay amounts of tax payable on interest received.^[22]

Royalties

12. 'Royalties' in paragraph 23AB(1)(d) has the meaning given by subsection 6(1) of the ITAA 1936.^[23] The ATO's views on the meaning of royalty are contained in the advice listed in Appendix 1.

13. The definition of 'royalties' in subsection 6(1) of the ITAA 1936 extends the ordinary meaning of royalties to include specified payments. For example, the expanded definition of royalties includes the right to use industrial, commercial or scientific equipment.^[24]

Rent

14. Consistent with the purpose of the amendment, 'rent' in paragraph 23AB(1)(d) means the consideration payable by a tenant to a landlord for the exclusive possession and use of land or premises.^[25] The Commissioner's view and examples on when consideration paid for the use of land or premises will be rent for the purpose of paragraph 23AB(1)(d) are set out in TD 2006/78. As rent takes its ordinary meaning there are no statutory income tax law exceptions that apply in contrast to the definition for interest (or payments in the nature of interest).

A net capital gain

15. A net capital gain for an income year is calculated using the method described in subsection 102-5(1) of the ITAA 1997.^[26] Broadly, it is calculated by subtracting the total of capital losses made in the income year and carried forward net capital losses, from the total of capital gains made in an income year. This is then adjusted for any small business concessions to which the taxpayer is entitled.^[27]

Trusts and partnerships

16. If a company is assessed on a share of net income from a trust, or their individual interest in the net income of a partnership, it will have BREPI to the extent that the amount included in its assessable income under Divisions 5 or 6 of Part III of the ITAA 1936 is referable to BREPI of the trust or partnership.^[28]

17. Where there is a chain of trusts or partnerships, the tests must be applied at each level.

Streaming of franked dividends and capital gains by the trustee of a trust

18. Where a trust makes capital gains or receives a franked distribution, the trustee may (where they have power under the trust deed) stream these amounts to particular beneficiaries for tax purposes.^[29] This can occur by making a beneficiary specifically entitled to these amounts.

19. Other amounts of the net income of a trust included in a corporate tax entity's assessable income (including capital gains and franked distributions to which no beneficiary is specifically entitled) are proportionately shared between beneficiaries based on their present entitlements to trust income.^[30]

Apportionment of expenses

20. In determining each beneficiary's or partner's share of net income, the trustee or partners must allocate expenses in a fair and reasonable way. Generally, expenses that can be clearly attributed to income should be allocated against that income. Indirect expenses that relate to more than one amount such as overheads, must be fairly and reasonably apportioned between different amounts.^[31]

Example 1.1 - apportionment of directly referable trust income

21. John Smith and Smith Pty Ltd are the beneficiaries of the JD Smith Trust. The JD Smith Trust owns a commercial investment property. In the 2017-18 income year, the net income of the JD Smith Trust comprised:

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$800,000 in net rental income, and

•

$200,000 in net fees for services.

22. John Smith and Smith Pty Ltd were each entitled to an equal share of the net income of the JD Smith Trust.

23. Rental income is BREPI^[32], so the amount of the trust's net income referable to rental income ($400,000) will be BREPI. The amount referable to fees for services ($100,000) is not BREPI.

Example 1.2 - working out amount of a company's share of net income attributable to BREPI

24. Company 1, Sub Trust 1 and Bob are beneficiaries of the Busy Trust. The net income of Busy Trust consisted of the following amounts:

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$500,000 net business income

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$300,000 net unfranked dividend, and

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$200,000 net rental income.

25. For trust law purposes, the trustee of Busy Trust resolved to make Company 1 presently entitled to its net business income, Bob presently entitled to the net unfranked dividend and Sub Trust 1 presently entitled to the net rental income.

26. For tax law purposes, as Company 1 was presently entitled to $500,000, it was presently entitled to 50% of the net income of the trust.

27. Although Company 1's share of net income is $500,000, that amount is not referable solely to business income. The effect of Division 6 of the ITAA 1936 is that Company 1's share of net income is attributable to:

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$250,000 of business income, which is not BREPI

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$150,000 of unfranked dividend income, which is BREPI, and

•

$100,000 of rental income, which is BREPI.

Example 1.3 - how to characterise income received by a trust

28. Top Floor Co is wholly owned by the Mezanine Trust, which has two beneficiaries: Freddy and Basement Co.Top Floor Co derives only rental income. Top Floor Co pays a franked dividend to the MezanineTrust.

29. The Mezanine Trust also derives interest from a bank account. The trustee streams the franked dividend to Basement Co for tax purposes under Subdivision 207-B of the ITAA 1997. Basement Co has no other income. The trustee makes Freddy entitled to the interest.

30. Basement Co needs to determine whether its share of the net income of the Mezanine Trust is attributable to BREPI. The franked dividend received by Mezanine Trust from Top Floor Co is not a non-portfolio dividend, as it is not paid to a company.^[33] The franked dividend received by Mezanine Trust is BREPI.^[34]

31. Basement Co's share of the net income of the Mezanine Trust is entirely referable to BREPI.

Example 1.4 - apportionment of indirectly referable trust income

32. Succotash Pty Ltd and Tom Edwards are beneficiaries of the Beta Trust. The Beta Trust is the sole beneficiary of the Central Property Trust.

33. The Central Property Trust owns commercial rental properties which it leases on normal commercial terms. In the 2017-18 income year, the Central Property Trust's net income was $900,000, derived solely from the rental of its commercial properties. All (100%) of its net income is attributable to BREPI.

34. The Beta Trust was entitled to all Central Property Trust's trust income. Beta Trust's net income included $900,000 of BREPI, attributable to the net income from the Central Property Trust.

35. The Beta Trust also earned $100,000 in net trading income by operating a retail business. The net income of the Beta Trust for the 2017-18 income year was $1 million.

36. The $900,000 share of net income of the Central Property Trust is attributable solely to rental income, and so is referable to BREPI. Beta Trust has also included $100,000 in net trading income in its net income. Of Beta Trust's $1 million in assessable income in the 2017-18 income year, 90% is BREPI.

37. Succotash Pty Ltd is presently entitled to 50% of the trust income of the Beta Trust. Half (50%) of the net income of the Beta Trust is included in its assessable income.

38. Succotash Pty Ltd earned no other income in the 2017-18 income year. Its 2017-18 assessable income was $500,000, consisting entirely of the Beta Trust distribution. Succotash Pty Ltd's 2017-18 aggregated turnover was $500,000.

39. Of the $500,000 share of net income of the Beta Trust on which Succotash Pty Ltd is assessed, 90% is referable to BREPI. Succotash Pty Ltd did not qualify for the lower corporate tax rate of 27.5% in the 2017-18 income year and is taxable at the 30% rate.

Example 1.5 - apportionment of trust expenses

40. Orange Grove Co is the beneficiary of the Orange Trust, which owns and operates a small citrus grove. In the 2017-18 income year, the Orange Trust received:

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$850,000 from the sale of oranges, and

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$400,000 from renting out parts of the grove.

41. In the 2017-18 income year the Orange Trust paid an accountant to handle the financial affairs to the Trust, which cost $50,000. It also hired labourers to assist in the sale of oranges, which cost $150,000, and staff to manage the renting of the grove, which cost $100,000.

42. In determining its net income, the Orange Trust allocated its expenses against its two sources of income. The cost of $150,000 for hiring labourers was attributed to trading income from the sale of oranges, reducing that amount to $700,000. The cost of $100,000 for hiring staff to manage the renting of the grove was attributed to rental income, reducing that amount to $300,000. The accountant's cost of $50,000 related to both income amounts and needed to be apportioned on a fair and reasonable basis. In these circumstances, an apportionment that reflected the proportions of each income source was considered to be fair and reasonable.

43. The $50,000 spent on an accountant was apportioned in the following way:

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$35,000 was attributed to the income from selling oranges (i.e. $50,000 × $700,000 / ($700,000 + $300,000)), reducing that amount to $665,000, and

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$15,000 was attributed to the income from renting the grove (i.e. $50,000 × $300,000 / ($300,000 + $700,000), reducing that amount to $285,000.

44. Orange Grove Co was presently entitled to all of the trust income of the Orange Trust in the 2017-18 income year. Its assessable income therefore included all of the net income of the Orange Trust totalling $950,000. Orange Grove Co included no other income in its assessable income. Of the $950,000, the $285,000 referable to rental income was BREPI.^[35] The remaining $665,000 was referable to trading income, which is not BREPI.

45. Orange Grove Co had 42.9% BREPI and an aggregated turnover of $950,000, below the 2017-18 threshold of $25 million. Orange Grove Co qualified for the lower corporate tax rate of 27.5% in the 2017-18 income year.

Imputation

46. This section provides guidance on the imputation consequences of the lower corporate tax rate and the distinction between the corporate tax rate and the ' corporate tax rate for imputation purposes '.

47. The franking credit a corporate tax entity may attach to a frankable distribution cannot exceed the maximum franking credit for the distribution.^[36] The maximum franking credit is worked out by reference to the corporate tax entity's corporate tax rate for imputation purposes.^[37]

48. A corporate tax entity's corporate tax rate for imputation purposes is worked out differently to its tax rate. This means a corporate tax entity's tax rate for an income year may be different to the rate it can frank dividends in that year.

49. The Treasury Laws Amendment (Enterprise Tax Plan Base Rate Entities) Act 2018 amends the meaning of corporate tax rate for imputation purposes from the 2017-18 income year.^[38] From the 2017-18 income year a corporate tax entity works out its corporate tax rate for imputation purposes by:^[39]

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assuming that its aggregated turnover, BREPI and assessable income are the same as in the previous income year, and

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applying the corporate tax rate for the current income year.

50. If the entity did not exist in the previous income year, its corporate tax rate for imputation purposes is 27.5%.^[40]

Example 2.1 - company does not have a previous income year

51. Kookaburra Co was founded on 1 July 2017.

52. As Kookaburra Co did not exist in the prior income year (the 2016-17 income year), its 2017-18 corporate tax rate for imputation purposes is 27.5%.

Example 2.2 - corporate tax rate is different to corporate tax rate for imputation purposes because of aggregated turnover change in consecutive income years

53. In the 2016-17 income year, Emu Co had aggregated turnover of $24 million. Emu Co's 2016-17 assessable income was 55% BREPI.

54. In the 2017-18 income year, Emu Co had aggregated turnover of $28 million. Emu Co's 2017-18 assessable income was 62% BREPI. Because Emu Co's 2017-18 aggregated turnover was above the aggregated turnover threshold of $25 million, it is not a base rate entity, and had a 2017-18 corporate tax rate of 30%.

55. Emu Co had a 2017-18 corporate tax rate for imputation purposes of 27.5%. This is because its aggregated turnover and base rate passive income, to calculate its corporate tax rate for imputation purposes in the 2017-18 income year, is below the $25 million dollar threshold, and less than 80%.

Example 2.3 - corporate tax rate is different to corporate tax rate for imputation purposes because of a change in the percentage of BREPI in consecutive income years

56. In the 2017-18 income year, Cockatoo Co had an aggregated turnover of $48 million. Cockatoo Co's 2017-18 assessable income was 82% BREPI.

57. In the 2018-19 income year, Cockatoo Co had aggregated turnover of $46 million. Cockatoo Co's 2018-19 assessable income was 75% BREPI. Cockatoo Co's 2018-19 aggregated turnover was below the aggregated turnover threshold of $50 million, and its BREPI was below the 80% threshold. Therefore, it was a base rate entity, with a 2018-19 corporate tax rate of 27.5%.

58. Cockatoo Co has a 2018-19 corporate tax rate for imputation purposes of 30%. This is because its BREPI for the purpose of determining its corporate tax rate for imputation purposes is above the 80% threshold.

Commissioner of Taxation
24 August 2018

Appendix 1 - Related ATO rulings and guidance

59. The first column lists amounts of assessable income that are 'base rate entity passive income'. The second column lists other guidance material relevant to those amounts.

Appendix 2 - Your comments

60. You are invited to comment on this draft Law Companion Ruling including the proposed date of effect. Please forward your comments to the contact officer by the due date.

© AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA

You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).

References

File 1-CYTCVCC

Related Rulings/Determinations:

IT 2660
TD 2007/78
TR 93/12
TR 95/6
TR 96/3
TR 96/14
TR 2002/4
TR 2002/14DAC3
TR 2008/7
TR 2012/D1
TR 2012/5

Legislative References:
ITRA 1986
ITRA 1986 23AA(a)
ITRA 1986 23AA(b)
ITRA 1986 23AB
ITRA 1986 23AB(1)(a)
ITRA 1986 23AB(1)(b)
ITRA 1986 23AB(1)(c)
ITRA 1986 23AB(1)(d)
ITRA 1986 23AB(1)(e)
ITRA 1986 23AB(1)(f)
ITRA 1986 23AB(1)(g)
ITRA 1986 23AB(2)(a)(i)
ITRA 1986 23AB(2)(a)(iii)
ITRA 1986 23AB(2)(b)
ITAA 1936
ITAA 1936 Div 5 Pt III
ITAA 1936 Div 6 Pt III
ITAA 1936 6(1)
ITAA 1936 Div 16E Pt III
ITAA 1936 202A
ITAA 1936 317
ITAA 1997
ITAA 1997 102-5
ITAA 1997 102-5(1)
ITAA 1997 Subdiv 115-C
ITAA 1997 152-35
ITAA 1997 152-40(4)(e)
ITAA 1997 165-111
ITAA 1997 202-60
ITAA 1997 205-15
ITAA 1997 Subdiv 207-B
ITAA 1997 328-115
ITAA 1997 960-120
ITAA 1997 974-120
ITAA 1997 995-1(1)
Financial Sector (Collection of Data) Act 2001
FSCDA 2001 5(3)
FSCDA 2001 32(1)
NCCPA 2009
NCCPA 2009 35(1)
NCCPA 2009 64(2)
NCCPA 2009 65(2)
Acts Interpretation Act 1901
Acts Interpretation Act 1901 15AA
Corporations Act 2001
Corporations Act 2001 254T
Corporations Act 2001 761A

Case References:
C H Bailey Ltd v. Memorial Enterprises Ltd
[1974] 1 All ER 1003

Federal Commissioner of Taxation v. Century Yuasa Batteries Pty Ltd
(1998) 82 FCR 288
(1998) 38 ATR 442
98 ATC 4380
Federal Wharf Co. Ltd. v. Deputy Federal Commissioner of Taxation
(1930) 44 CLR 24
(1930) 4 ALJ 200
(1930) 1 ATD 70
(1930) 36 ALR 349
[1930] HCA 30
Federal Commissioner of Taxation v. Greenhatch
[2012] FCAFC 84
2012 ATC 20-322
(2012) 203 FCR 134
[2013] ALMD 2620
(2012) 88 ATR 560
Radaich v. Smith
(1959) 69 WN (NSW) 97
(1959) 101 CLR 209
(1959) 33 ALJR 214
[1959] ALR 1253
[1959] HCA
Ronpibon Tin NL v. Federal Commissioner of Taxation
(1949) 78 CLR 47
(1949) 23 ALJ 139
(1949) 8 ATD 431
[1949] ALR (CN) 1055
[1949] ALR 785
[1949] HCA 15
United Sientific Holdings Ltd v. Burnley Borough Council
[1978] AC 904
[1977] 2 WLR 806
[1977] 2 All ER 62
(1977) 75 LGR (Eng) 407
(1977) 33 P and CR 220
(1977) 243 Estates Gazette 43
(1977) 121 Sol J

Other References:
Explanatory Memorandum to Treasury Laws Amendment (Enterprise Tax Plan Base Rate Entities) Bill 2017
Halsbury's Laws of England 4th Edition Reissue, Butterworths, London 1994, vol 27(1) 'Landlord and Tenant', paragraph 212
The Australian Oxford Dictionary, 1999, Oxford University Press, Melbourne