House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Treasurer, the Hon J. B. Hockey MP)

Chapter 7 - Investment manager regime

Outline of chapter

7.1 Schedule 7 to this Bill amends the Income Tax Assessment Act 1997 (ITAA 1997) to implement the third and final element of the investment manager regime (IMR) reforms. In addition, these amendments also make some changes to the existing regime. The IMR reforms are designed to attract foreign investment to Australia and promote the use of Australian fund managers by removing tax impediments to investing in Australia. The development and introduction of an IMR was a recommendation of the 2009 report, 'Australia as a Financial Centre: Building on our Strengths - Report by the Australian Financial Centre Forum', commonly known as the 'Johnson Report'.

7.2 All legislative references in this Chapter are to the ITAA 1997 unless otherwise stated.

Context of amendments

7.3 In 2008, the then Assistant Treasurer and Minister for Competition Policy and Consumer Affairs established the Australian Financial Centre Forum (AFCF) as a Government and industry partnership to examine ways to position Australia as a leading regional financial services centre. In November 2009, the AFCF provided its report to the then Minister for Financial Services, Superannuation and Corporate Law. A copy of the report is available on the AFCF's website (www.afcf.treasury.gov.au).

7.4 The Johnson Report noted that features of Australia's tax system could act as an impediment to certain cross-border activities - including certain investments made by foreign investors into or through Australia. The introduction of an IMR to provide specific exemptions from Australian income tax for particular investments of foreign investors was proposed as a means of removing such impediments.

7.5 In August 2011, the Board of Taxation (BOT) made a number of recommendations in respect of the design of an IMR in its report, 'Review of an Investment Manager Regime as it relates to foreign managed funds: a report to the Assistant Treasurer'. The BOT recommended that an exemption style IMR be introduced that would apply to portfolio level investments made into Australia, as well as to certain investments made through Australia that were subject to Australian tax because of the use of Australian based intermediaries or fund managers. A key recommendation of the BOT was that the IMR should only apply to the investments of foreign funds that are genuinely widely held. A copy of this report is available on the BOT's website (www.taxboard.gov.au).

7.6 Following the release of the BOT's report, the then Minister for Financial Services and Superannuation announced on 16 December 2011 that the Government would address the uncertainty faced by foreign investors with respect to aspects of Australia's income tax laws when making passive investments into Australian assets and foreign assets.

7.7 There are three elements to the IMR reforms:

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Element 1 was enacted by the Tax Laws Amendment (Investment Manager Regime) Act 2012 (previous IMR Act). Element 1 was designed to mitigate the consequences of United States of America (US) accounting standard Financial Interpretation Number 48 to ensure that Australia's income tax regime did not cause any uncertain tax positions to arise in relation to past transactions of foreign funds. The relevant provisions are contained in the Income Tax (Transitional Provisions) Act 1997 (IT(TP)A 1997).

•

Element 2 was also enacted by the previous IMR Act. Element 2 created a new Subdivision 842-I to provide concessional income tax treatment to foreign investors on their share of certain returns or gains from investments of a portfolio nature (membership interests of less than 10 per cent of the total) in assets through Australia by widely held foreign funds.

•

This Bill implements Element 3 of the IMR reforms by extending the concession to cover direct investments in Australian assets that are of a portfolio nature. These amendments also remove the portfolio restriction in respect of investments in foreign assets that are made through Australia. The amendments also make significant changes to the criteria that determine when a foreign fund is widely held and simplify the legislative mechanism for providing the IMR concession.

7.8 The IMR regime provides two concessions. The first is designed to place individual foreign investors that invest into Australia through a foreign fund in the same income tax position in relation to disposal gains and disposal losses as they would typically have been had they made their share of the fund's investments directly (rather than through the fund). The second is designed to ensure that a foreign investor that invests through an independent Australian fund manager will be in the same position, in relation to disposal gains and losses, as if they had invested directly.

7.9 These changes are expected to encourage greater foreign investment to Australia and allow Australian fund managers to actively market their financial services globally, thereby promoting Australia as a regional financial services centre.

Summary of new law

7.10 These amendments replace the existing Subdivision 842-I with a new regime that allows foreign entities to qualify for the IMR concession either by investing directly in Australia (direct investment concession) or investing via an Australian fund manager (indirect investment concession). An entity may independently qualify for the direct investment concession or the indirect investment concession. Whilst the tax consequences of either concession are the same, the indirect investment concession applies to a broader range of transactions.

7.11 As noted in paragraph 7.7, these amendments broaden the scope of the IMR regime. As part of this, the amendments remove a number of existing concepts and definitions used in Subdivision 842-I.

7.12 In addition, these amendments also make several technical changes to the operation of Subdivision 842-1 of the IT(TP)A 1997 to ensure some entities are not inadvertently excluded or disadvantaged in relation to Element 1 of the IMR reforms.

Comparison of key features of new law and current law

Detailed explanation of new law

7.13 The IMR concession is designed to encourage investment made into, or through, Australia by foreign entities by removing two impediments arising from the operation of Australia's income tax laws.

7.14 The first impediment arises for direct investments made by foreign entities into Australian assets that do not relate, directly or indirectly, to Australian real property or an Australian trading business. Disposal gains on such investments are either taxed on revenue account (as assessable income) or disregarded as a capital gain (because they are not taxable Australian property).

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In general, whether an investment is held on revenue or capital account is determined by having regard to the purpose and activities of the entity making the investment. For example, a foreign individual who disposes of a passive investment in an asset typically realises gains of a capital nature rather than revenue and therefore would not be subject to Australian income tax.

•

By contrast, where such gains are made from pooling the investments of a wide base of investors into a fund, having regard to the purpose and activities of such a fund, equivalent disposal gains are more likely to be revenue and therefore subject to Australian income tax.

7.15 The second impediment arises for foreign entities investing through an independent Australian fund manager. To the extent use of such a manager constitutes an Australian permanent establishment (PE) certain returns or gains from these investments would have an 'Australian source' and so, in the absence of these amendments, would typically be taxable in Australia.

What is the IMR concession?

7.16 The IMR concession disregards specific Australian income tax consequences arising from specific investments made by foreign entities, including individuals, companies, beneficiaries of non-resident trusts and partners in partnerships. [Schedule 7, item 1, subsection 842-210(1)]

7.17 Consistent with Australia's existing arrangements for the taxation of trusts and partnerships, specific rules apply to non-resident trusts and partnerships to ensure the IMR concession flows through to foreign beneficiaries and partners. For example, a foreign beneficiary of a non-resident trust would apply the IMR concession to the extent necessary to work out their assessable income in Australia. These rules are necessary because of the flow-through nature of trusts and partnerships and the existing income tax provisions in Division 5 (partnerships) and Division 6 (trusts) of Part III of the Income Tax Assessment Act 1936 (ITAA 1936). [Schedule 7, item 1, subsection 842-210(2)]

What entities qualify for the concession?

7.18 The concept of an IMR entity forms a key building block in determining whether a foreign entity receives the IMR concession. Only income derived by an IMR entity may qualify for the concession. However, as noted above, should foreign investors invest through an IMR entity that is a non-resident trust or partnership then those consequences flow through to the foreign beneficiaries or foreign partners.

7.19 Given the objectives of the IMR reforms, an entity will only be an IMR entity in relation to an income year if it is not an 'Australian resident' and not a 'resident trust for CGT purposes' at all times during the year. This means that the IMR concession does not affect the tax treatment of Australian residents that have interests in the IMR entity. Australian residents continue to be subject to Australian income tax on such investments. [Schedule 7, item 1, section 842-220]

7.20 'Australian resident' and 'resident trust for CGT purposes' are existing Australian income tax law concepts that are defined in subsection 995-1(1). The use of these concepts ensures that look-through vehicles that do not have a residency status for Australian income tax purposes can still qualify for the IMR concession.

7.21 As Australia's income tax system operates on an income year basis (the standard income year being 1 July to 30 June), these rules similarly operate on an equivalent income year basis. This means that an entity which initially qualifies as an IMR entity will need to assess on an ongoing basis that it continues to meet these requirements.

Example 7.1

Walkers Worldwide, a non-resident trust, is an IMR entity and has net income of $100. Rick and Carlie are beneficiaries of Walkers Worldwide and are each entitled to 1 per cent of its income

Rick is an Australian resident. Because of his residency status and Walkers Worldwide's status as a trust, the IMR concession has no application in working out Rick's assessable income. As such, for the purposes of determining Rick's share of the net income of the trust, Walkers Worldwide has a net income of $100. Rick's assessable income includes his share ($1) of the net income of Walkers Worldwide.

Carlie is not a resident of Australia for Australia's income tax purposes. Because of her residency status and Walkers Worldwide's status as a trust, the IMR concession notionally applies to the trust for the purposes of working out Carlie's assessable income (which includes her share of the net income of Walkers Worldwide).

What are the tax consequences of the concession?

7.22 The IMR concession operates by:

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treating certain amounts of income that would otherwise be 'assessable income' as 'non-assessable non-exempt income';

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denying certain 'deductions'; and

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disregarding certain 'capital gains' and 'capital losses'.

'Assessable income', 'non-assessable non-exempt income', 'deductions', 'capital gains' and 'capital losses' are all core Australian income tax concepts and are defined in subsection 995-1(1). [Schedule 7, item 1, paragraphs 842-215(1)(a), (b) and (c) and 842-215(2)(a), (b) and (c)]

Example 7.2

Further to Example 7.1.

Assume that all of Walkers Worldwide's income qualifies for the IMR concession such that Walkers Worldwide's income of $100 is non-assessable non-exempt income, resulting in it having no net income.

The benefit of the IMR concession flows through to Carlie as she would consequently have no assessable trust distribution and (as a result of Walkers Worldwide's income being made non-assessable non-exempt) no capital gain in respect of her trust interest.

Similarly, if Carlie's entitlement to the $1 of income flows from Walkers Worldwide to another non-resident trust before being distributed to Carlie, then the benefit of the IMR concession will pass through the non-resident trust to Carlie. This is because the income has already been made non-assessable non-exempt income in the hands of Walkers Worldwide for the purposes of working out Carlie's assessable income.

7.23 There are two limbs to the IMR concession.

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The first limb applies in relation to financial arrangements and is relevant for both the direct investment concession and the indirect investment concession.

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The second limb applies in relation to specific tax consequences that arise or relate to an IMR financial arrangement as a result of an independent Australian fund manager constituting a PE of the IMR entity. As such, the second limb is relevant for just the indirect investment concession.

The IMR concession applying to IMR financial arrangements

7.24 The first limb of the IMR concession applies to disposal gains and losses arising from financial arrangements and to gains and losses arising from derivative financial arrangements. The concepts of a 'financial arrangement' and a 'derivative financial arrangement' are set out in sections 230-45 to 230-55 and subsection 230-350(1) respectively. Both concepts constitute an IMR financial arrangement for the purposes of the IMR concession. [Schedule 7, item 1, subsection 842-215(1)]

7.25 However, consistent with the design principle that the IMR concession does not provide foreign investors with a more advantageous outcome in relation to income that would otherwise be taxable capital gains, particular financial arrangements are excluded. Specifically, a financial arrangement will be an IMR financial arrangement unless it is, or relates to, a 'CGT asset' that is 'taxable Australian real property' or an 'indirect Australian real property interest'. 'CGT assets' are defined in section 108-5 and the concepts of 'taxable Australian real property' and 'indirect Australian real property interest' are set out in sections 855-20 and 855-25 respectively. [Schedule 7, item 1, paragraphs 842-225(1)(a) and (b)]

7.26 This means, for example, that gains arising from the disposal of portfolio equity interests in companies and in other entities (such as units in a unit trust), gains arising from the disposal of bonds and foreign exchange gains made under forward contracts qualify for the IMR concession. However, regular returns on IMR financial arrangements do not.

7.27 In addition, the IMR financial arrangement must not relate, either directly or indirectly, to the IMR entity carrying on a 'trading business' in Australia. The requirement that the financial arrangement not relate to such a business ensures that the IMR concession applies to passive, rather than active, types of income. The concept of a 'trading business' is set out in section 102M of the ITAA 1936. [Schedule 7, item 1, paragraphs 842-215(3)(d) and (5)(c)]

7.28 Extending the IMR concession to derivative financial arrangements recognises that entities frequently enter into such arrangements to minimise the risks associated with the underlying investment. Limiting the IMR concession to the underlying investment activity of an IMR entity and not arrangements associated with that activity would significantly undermine the effectiveness of the regime.

Sub-underwriting arrangements

7.29 Sub-underwriting arrangements are typically used to share the risk assumed by an underwriter. Where an entity seeks to raise finance, an underwriter guarantees, for a fee, that those funds will be raised by agreeing to take up any unsubscribed interests. An independent Australian fund manager, on behalf of an IMR entity, may sub-underwrite some or all of the underwriter's risk. Where those subscribed interests are themselves IMR financial arrangements, the sub-underwriting fee earned by the IMR entity may qualify for the IMR concession. If the IMR entity does not ultimately take up any interests because, for example, the offer is fully subscribed, the sub-underwriting fee can still qualify for the IMR concession. [Schedule 7, item 1, subsection 842-215(2)]

7.30 These rules for sub-underwriting arrangements apply only in respect of the indirect investment concession and not the direct investment concession. This is because the direct investment concession is designed to place individual foreign investors that invest into Australia through a foreign fund in the same income tax position in relation to disposal gains and disposal losses as they would typically have been had they invested directly rather than collectively through a foreign fund. Sub-underwriting fees are typically on revenue account (rather than capital account) regardless of whether an investor invests collectively or directly. Therefore, it is not appropriate to extend the sub-underwriting rules to the direct investment concession. [Schedule 7, item 1, paragraph 842-215(3)(e)]

The IMR concession applying in relation to permanent establishments

7.31 In addition the second limb of the IMR concession applies to disregard any additional income tax consequences that relate to or arise under an IMR financial arrangement as a result of the IMR entity having a PE in Australia on account of engaging an independent Australian fund manager. This means, for example, that amounts paid to an IMR entity as compensation for a loss suffered directly as a result of an act done, or an omission, by the independent Australian fund manager in relation to an IMR financial arrangement would be income that relates to that arrangement. [Schedule 7, item 1, subsection 842-215(2)]

7.32 Similarly, a foreign exchange gain from normal expense accruals of the fund (such as from related management fees) that would otherwise be assessable, could be considered to indirectly relate to each of the IMR financial arrangements of the fund. This means that these fees, provided they do not relate to anything other than one or more IMR financial arrangements of the IMR entity, would qualify for the IMR concession.

7.33 The question of whether a foreign entity has a PE in Australia depends on whether that entity is a resident of a country with an international tax agreement with Australia (based on the entity's residency as defined under the relevant international tax agreement). Consequently, to the extent that an IMR entity's income is not treated as having a source in Australia as a result of being attributable to a PE under a relevant international tax agreement, then this limb of the IMR concession still applies to the extent that the income is treated as having a source in Australia because of subsection 815-230(1). [Schedule 7, item 1, subsection 842-215(7)]

7.34 Amounts of income that would otherwise be subject to withholding tax, such as dividends, interest and royalty payments, do not qualify for the IMR concession. [Schedule 7, item 1, subsection 842-215(6)]

Qualifying for the direct investment concession

7.35 An IMR entity may qualify for the direct investment concession in relation to an income year if:

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it is an IMR widely held entity during the whole of the year (or all of the part of the year that it exists);

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the interest of the entity in the issuer of, or counterparty to, the IMR financial arrangement does not pass the 'non-portfolio interest test' during the whole of the year; and

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none of the returns, gains or losses from the arrangement are attributable to a 'permanent establishment' in Australia.

[Schedule 7, item 1, subsections 842-215(3) and (4)]

7.36 Consistent with the BOT's recommendations, the concept of an IMR widely held entity ensures the IMR concession applies to only those entities that are genuinely widely held. Paragraphs 7.41 to 7.65 provide further information about what entities qualify.

7.37 The 'non-portfolio interest test' is set out in section 960-195. Not passing the non-portfolio interest test requires the holding entity and its associates to hold a direct participation interest of less than 10 per cent in the issuer of, or counterparty to, the IMR financial arrangement. Consistent with the requirement that the IMR financial arrangement not relate to a trading business in Australia, this rule ensures that the IMR concession applies only in respect of passive, rather than active, business income.

7.38 Using the concept of a counterparty to an IMR financial arrangement ensures that it is the interest of the IMR entity in the other party to the derivative that is tested (rather than the entity to which the derivative relates).

7.39 The definition of a 'permanent establishment' is set out in either the applicable international tax agreement (based on the residency of the IMR entity) or, if no such agreement applies in relation to the IMR entity, subsection 6(1) of the ITAA 1936. [Schedule 7, item 1, paragraph 842-215(3)(c) and subsection 842-215(7)]

7.40 It is important to note that the direct investment concession does not apply to disposal gains or losses that are attributable to an Australian PE.

•

Instead, the IMR entity may qualify for the indirect investment concession if the Australian PE is an independent Australian fund manager and the relevant gains or losses have arisen as a result of that engagement.

•

Paragraphs 7.66 to 7.79 provide further information about the indirect investment concession.

Example 7.3:

Bonjour Investments Ltd is a foreign investment entity based outside of Australia but it also has an Australian office that constitutes an Australian PE.

Should Bonjour Investments Ltd makes portfolio investments directly into Australia (that is, not through its office) then any gains or losses made on disposal of those investments will not be attributable to its PE in Australia.

The fact that Bonjour Investments has an Australian PE does not disqualify it from accessing the direct investment concession.

What is an IMR widely held entity?

7.41 To provide flexibility, an entity may qualify as an IMR widely held entity in one of two ways. Specific types of entities that are genuinely widely held automatically qualify whereas other entities need to satisfy one of two total participation interest requirements. This approach provides a balance between minimising compliance costs for foreign investors and ensuring that only genuinely widely held entities qualify for the IMR concession.

•

However, to help alleviate the cliff-edge nature of the total participation interest requirements, there is a temporary exception to these requirements.

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This rule is discussed in paragraphs 7.63 to 7.65.

Specific types of widely held entities

7.42 A 'foreign life insurance company' as defined in subsection 995-1(1) as well as an entity listed in subsection 12-402(3) of Schedule 1 to the Taxation Administration Act 1953 (TAA 1953) (with the exception of those entities listed in paragraph 12-402(3)(e)) automatically qualifies as an IMR widely held entity.

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The entities listed in subsection 12-402(3) of Schedule 1 to the TAA 1953 are entities that are taken to be widely held under the rules relating to managed investment trusts.

•

Alternative rules apply to entities listed in paragraph 12-402(3)(e) of Schedule 1 to the TAA 1953 - these rules are explained in paragraph 7.54.

[Schedule 7, item 1, paragraphs 842-230(1)(a) and (b)]

7.43 To provide ongoing flexibility, the regulations may prescribe additional types of entities. [Schedule 7, item 1, paragraph 842-230(1)(c)]

Widely held entities based on total participation interests

7.44 Alternatively, an entity may qualify as an IMR widely held entity if it satisfies either of the following tests (the total participation interest tests):

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no entity has a 'total participation interest' of 20 per cent or more in the IMR entity; or

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there are no five or fewer entities with a combined 'total participation interest' of at least 50 per cent in the IMR entity.

[Schedule 7, item 1, paragraph 842-230(2)(a)]

7.45 These percentages are based on the requirements in the United Kingdom's (UK) Investment Manager Exemption (IME) and like the UK's IME, either of the above tests, not both, need to be satisfied in order for the IMR entity to be an IMR widely held entity. This means, for example, that if a fund (that is an IMR entity) has six unaffiliated investors with equal interests in the fund, then despite the fund having five investors who hold the majority of interests in the fund, it will nonetheless be an IMR widely held entity because each investor has a total participation interest of less than 20 per cent.

7.46 The concept of a 'total participation interest' is set out in section 960-180 and incorporates the concepts of a 'direct participation interest' as defined in section 960-190 and an 'indirect participation interest' as defined in section 960-185.

7.47 Using these existing concepts ensures that it is possible to trace through a range of entities that may invest in an IMR entity to determine each entity's total participation interest in the IMR entity. Where an entity has an indirect participation interest through one or more interposed entities, then the interposed entity is treated as having a total participation interest of nil in the IMR widely held entity. Nonetheless, reference is still required to be made to an entity's direct and indirect participation interests in an interposed entity to calculate that entity's total participation interest. [Schedule 7, item 1, subsections 842-235(1) and (2)]

7.48 In practice, it may not be necessary for the IMR entity to continue tracing through a chain of entities once it identifies an entity in the chain with a total participation interest of less than 20 per cent. However, it may be necessary for the IMR entity to test all entities that have a direct participation interest in the IMR entity (and potentially all entities with an indirect participation interest if the entities with direct participation interests have a combined total participation interest of at least 50 per cent) to ensure that no five or fewer entities have a combined total participation interest of at least 50 per cent. Ultimately it will be a matter for the IMR entity to assure itself that it does not breach the total participation interest tests.

7.49 In testing an entity's total participation interest, the IMR entity needs to treat that entity and each of its 'affiliates' as together being one entity. The concept of an entity's affiliate is set out in section 328-130. This rule ensures an entity is not able to artificially dilute its total participation interest. [Schedule 7, item 1, subsections 842-235(1) and (4)]

7.50 Similarly, the IMR entity should not treat an entity that is a nominee of another entity as having rights in the test entity. Instead, the IMR entity should treat the other entity as having those rights. [Schedule 7, item 1, subsections 842-235(1) and (5)]

7.51 In addition, the IMR entity should not treat an object of a trust as having a direct participation interest or an indirect participation interest in the IMR entity. This is because the IMR widely held test focuses on the economic benefits that investors receive from a foreign entity. Once an object of a trust receives or becomes entitled to a share of the income of a trust, then it will also become a beneficiary of the trust. A total participation interest calculated on the basis of being a beneficiary (rather than an object) of the trust better reflects the economic benefits accruing to that entity. [Schedule 7, item 1, subsections 842-235(1) and (3)]

7.52 For the same reason, it is not necessary to test who controls the voting power of the IMR entity (which sometimes may be the fund manager). As the widely held test is designed to ensure that the IMR entity is widely held the criteria in paragraph 350(1)(b) of the ITAA 1936 can be ignored in determining whether an entity has a total participation interest in another entity. [Schedule 7, item 1, subsections 842-235(1) and (8)]

7.53 Furthermore, an independent fund manager may have additional rights or interests in the IMR entity that reflect its fund management role rather than an entitlement to economic benefits. As such, an IMR entity may disregard any direct or indirect entitlement (including contingent entitlements) of an independent fund manager or any entity connected with the fund manager that is subject to tax in the year it is received in calculating the total participation interest of the fund manager (and any entity connected with the fund manager). For example, a fund manager's entitlements from the IMR entity may consist of seed capital, flat fees, profit incentives and returns payable on seed capital and profit incentive interests - some of which may be taxable in the year received whereas other entitlements may have deferred tax consequences. It is not only such entitlements of independent Australian fund managers that are disregarded under this rule, but also such entitlements of any independent fund manager. This could include, for example, circumstances where the IMR entity has engaged a foreign fund manager and is accessing the direct investment concession. In this case, 'independent fund manager' takes its ordinary meaning. The concept of an entity 'connected with' another entity is set out in section 328-125. [Schedule 7, item 1, subsections 842-235(1) and (9)]

7.54 As the purpose of the total participation interest tests is to determine if an entity is an IMR widely held entity, it is not necessary to apply these rules to an entity that is specifically listed as an IMR widely held entity or an entity listed in paragraph 12-402(3)(e) of Schedule 1 to the TAA 1953. Instead, such an entity is deemed to have a total participation interest of nil. This means, for example, if an IMR widely held entity invests in another IMR entity (the second IMR entity), then it would have a total participation interest of nil should the second IMR entity choose to test whether the total participation interests of each of its investors exceeds 20 per cent. [Schedule 7, item 1, subsections 842-235(1) and (6)]

7.55 When testing whether there are five or fewer entities with a combined total participation interest of at least 50 per cent, by deeming the participation interest of such an entity to be nil, it will not affect the counting of the total participation interests but it is still counted as an entity in the calculation of the number of entities. [Schedule 7, item 1, subsections 842-235(1) and (7)]

Example 7.4

Doone Funds is a feeder fund that wholly invests in Clem Investments, an IMR entity. To determine whether Clem Investments is an IMR widely held entity, it is necessary to test Doone Funds total participation interest.

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Flimbin Fund, an endowment fund, holds a 15 per cent interest in Doone Funds.

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Wiggins Ltd, has an 85 per cent interest in Doone Funds. Wiggins Ltd has six shareholders (who are not affiliates) Casey, Rebecca, Ross, Michelle, Alex and Essam each with a 16.67 per cent shareholding.

As Casey, Rebecca, Ross, Michelle, Alex and Essam each have a total participation interest in Clem Investments of 14.17 per cent (calculated as 16.6 per cent × 85 per cent × 100 per cent), Wiggins Ltd's total participation interest of 85 per cent in Clem Investments and Doone Fund's total participation interest of 100 per cent in Clem Investments are ignored.

As no entity has a total participation interest of more than 20 per cent, Clem Investments qualifies as an IMR widely held entity.

Example 7.5

Gorch Investments invests in Anny Funds Management, an IMR entity. To determine whether Anny Funds Management is an IMR widely held entity, it is necessary to test Gorch Investments' total participation interest.

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The Kuttner Hunger Fund, a charity, has a 30 per cent interest in Gorch Investments and Rubashov Ltd has a 70 per cent interest in Gorch Investments.

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Rubashov Ltd has twenty shareholders (who are not affiliates) with each having an equal 5 per cent shareholding.

As each of Rubashov Ltd's shareholders has a total participation percentage of 3.5 per cent in Anny Funds Management (calculated as 5 per cent × 70 per cent × 100 per cent), Rubashov Ltd's total participation percentage of 70 per cent is ignored.

As no five entities (the Kuttner Hunger Fund plus four shareholders in Rubashov Ltd) have a combined total participation interest of 50 per cent or more, Anny Funds Management is an IMR widely held entity.

Example 7.6

Wexler Worldwide has a 100 per cent interest in Lahiri Funds Management, which is an IMR entity.

Bevers Insurance Ltd, a foreign life insurance company, has a 10 per cent interest in Wexler Worldwide but is taken to have a total participation interest of nil in Lahiri Funds Management.

Lincoln Perpetual, an endowment fund, has a 20 per cent interest in Wexler Worldwide and so has a total participation interest of 20 per cent in Lahiri Funds Management (unless another entity is identified as having a direct participation interest in Lincoln Perpetual).

Grailman Ltd has a 70 per cent interest in Wexler Worldwide but it has four shareholders; Phil, Winchin, Ly and Kamala, each with a 25 per cent shareholding. As Phil, Winchin, Ly and Kamala are not affiliates, each shareholder has a 17.5 per cent total participation interest in Lahiri Funds Management (calculated as 25 per cent × 70 per cent × 100 per cent).

Lahiri Funds Management is not a widely held IMR entity.

•

Lincoln Perpetual has a 20 per cent total participation interest in Lahiri Funds Management.

•

There are five entities with total participation interests in Lahiri Funds Management that have a combined total participation interest of 50 per cent or more - Bevers Insurance Ltd plus Lincoln Perpetual plus Phil plus Winchin plus Ly have a combined total participation percentage of 72.5 per cent.

Example 7.7

Maraj Investments is a feeder fund for Codrea Capital, a master fund and IMR entity.

Adichie Ltd, a life insurance company, holds a 30 per cent interest in Maraj Investments but is taken to have a total participation percentage of nil in Codra Capital (as it is an entity covered by paragraph 12-402(3)(a) of Schedule 1 to the TAA 1953).

Chillson Endowments, an endowment fund, has a 10 per cent interest in Maraj Investments, and therefore has a total participation interest of 10 per cent in Codrea Capital (unless another entity is identified as having a direct participation interest in Chillson Endowments).

Quellman Ltd has a 60 per cent interest in Maraj Investments but it has five shareholders, Lucas, Michael, Evelyn, Ivy and Vinson, each with a 20 per cent shareholding. Each shareholder has a total participation interest of 12 per cent in Codrea Capital (calculated as 20 per cent × 60 per cent × 100 per cent).

Notwithstanding five entities (Lucas, Michael, Evelyn, Ivy and Vinson) having a combined total participation interest of 60 per cent, Codrea Capital is an IMR widely held entity as no entity has a total participation interest of 20 per cent or more.

Special rules for starting up, winding down and temporary circumstances outside an IMR entity's control

7.56 In addition, specific rules apply when the IMR entity is starting up or winding down. These rules recognise that in some circumstances an IMR entity may take some time to grow an investment base that satisfies the total participation interest tests. Similarly, an IMR entity is unlikely to satisfy the total participation interest tests once it starts winding down its investment activities.

7.57 As noted in paragraph 7.41, a temporary circumstances exemption also applies to alleviate the cliff-edge nature of the total participation interest tests.

Starting up

7.58 If an IMR entity has never satisfied the total participation interests test, then it is still taken to be an IMR widely held entity provided it is being actively marketed with the intention of satisfying the total participation interest tests. It will be a question of fact whether an IMR entity is being actively marketed and this requires evidence of ongoing genuine attempts to obtain third party investment to meet the total participation interests test. [Schedule 7, item 1, paragraph 842-230(2)(b)]

7.59 Although there is no express time limit on how long an IMR entity can be actively marketed with such an intention before it is taken to fail this test, an IMR entity that has not satisfied the total participation interest tests within a reasonable period of time (such as 18 months) of receiving its first investor may need to provide compelling evidence about its genuine attempts to obtain third party investment to rebut any presumption that it is not being actively marketed with such an intention.

7.60 Depending on the circumstances, there may be other forms of evidence indicating that an IMR entity is not being actively marketed with the intention of satisfying the total participation interest tests.

Winding down

7.61 If an IMR entity's activities and investments are being wound down, then it will be taken to continue to be widely held even if it no longer satisfies the total participation interests test. This accommodates situations where investors withdraw their funds from the IMR entity once they have been notified that the fund is being wound down. [Schedule 7, item 1, paragraph 842-230(2)(c)]

7.62 It will be a question of fact whether an IMR entity is being wound down. However, once an IMR entity has sent notices to its investors notifying them that it is being wound, then prima facie it would be taken to be wound down.

Temporary circumstances outside of an IMR entity's control

7.63 In some cases, an IMR entity may temporarily breach the total participation interest tests due to a reason beyond its control. For example, it is common for foreign investment entities to have substantial keystone investors, such as a life insurance company, a complying superannuation fund or another type of IMR widely held entity. The sudden and unexpected exit of such a keystone investor may result in an IMR entity failing the widely held test.

7.64 In these circumstances, having regard to the actions of the IMR entity to resolve these issues (and the speed with which they are taken), the IMR entity may continue to be treated as being widely held if it is fair and reasonable to do so. There are no limits on what actions the IMR entity could take and, depending on the circumstances, this may include winding down the entity. However, it is important to note that this rule applies only in relation to temporary circumstances. Accordingly, 'temporary' takes its ordinary meaning. [Schedule 7, item 1, section 842-240]

7.65 This rule provides an opportunity for the IMR entity to rectify the breach of the total participation interests test without losing the benefit of the IMR concession.

Qualifying for the indirect investment concession

7.66 As noted in paragraph 7.10, an entity may qualify for either the direct investment concession or the indirect investment concession. In determining whether an IMR entity qualifies for the indirect investment concession, it does not matter whether or not it also qualifies for the direct IMR investment concession. However, it is important to note that the second limb of the IMR concession (relating to PEs) only applies in relation to the indirect investment concession.

7.67 An IMR entity may qualify for the indirect investment concession in relation to an income year if:

•

the IMR financial arrangement is made on the IMR entity's behalf by an independent Australian fund manager; and

•

if the issuer, or counterparty to, the IMR financial arrangement is an Australian resident or a resident trust for CGT purposes - then the interest in the entity does not pass the 'non-portfolio interest test'.

Importantly, the requirement to not pass the non-portfolio interest test only applies in relation to interests in financial arrangements that are issued by Australian residents. There is no equivalent requirement in relation to financial arrangements issued by foreign residents. This is because investments into foreign assets by foreign residents without going through Australia would typically be outside the Australian tax net and therefore whether the foreign returns and gains are passive or active income is not important. The requirement that the non-portfolio interest test applies in respect of Australian investments is consistent with the trading business restriction applying to IMR financial arrangements. Paragraphs 7.24 to 7.28 provide further information about IMR financial arrangements and paragraph 7.37 provides further information about the non-portfolio interest test. [Schedule 7, item 1, subsection 842-215(5)]

What is an independent Australian fund manager?

7.68 To qualify as an independent Australian fund manager, the managing entity must be an Australian resident and carry out investment management activities for the IMR entity in the ordinary course of its business. This means, for example, that Australian brokers that buy and sell securities on the Australian Securities Exchange for foreign investors as part of their ordinary stock broking function would be considered as providing such services and therefore could be independent Australian fund managers. [Schedule 7, item 1, paragraphs 842-245(1)(a) and (b)]

7.69 In addition, the managing entity must, having regard to the Organisation for Economic Co-operation and Development (OECD) transfer pricing guidelines, receive an amount equivalent to arm's length level of remuneration for its services. [Schedule 7, item 1, paragraph 842 245(1)(c) and subsection 842-245(2)]

7.70 To ensure the relationship between the IMR entity and the managing entity is genuinely independent, either:

•

the IMR entity must be an IMR widely held entity; or

•

no more than 70 per cent of the managing entity's income for the income year is received from the IMR entity or an entity 'connected with' the IMR entity ('the 70 per cent or less test').

Paragraphs 7.41 to 7.65 provide further information about the requirements for an IMR entity to be an IMR widely held entity. [Schedule 7, item 1, subparagraphs 842-245(1)(d)(i) and (ii)]

7.71 There are also consequences if the independent Australian fund manager has an entitlement to more than 20 per cent of the value of the IMR concession to the IMR entity - see paragraphs 7.73 to 7.79.

Example 7.8

Three foreign investors, Lee, Ivar and Tanya, form a partnership to invest in Australian shares. Lee, Ivar and Tanya engage a fund manager, Tayler, on a commercial basis to acquire and sell shares on their behalf. Tayler is based in Australia and buys and sells shares for a wide range of Australian and international clients.

In one income year, Tayler makes a total of 100 transactions, of which 20 are made on behalf of Lee, Ivar and Tanya.

Assuming that Tayler receives equivalent amounts of income for each transaction, then only 20 per cent of Tayler's income for that income year is received from Lee, Ivar and Tanya and so Tayler qualifies as an independent Australian fund manager.

7.72 Recognising that newly formed managing entities may not be able to satisfy the 70 per cent or less test, an entity that has been carrying out investment management activities for 18 months or less need only take all reasonable steps to ensure that its proportion of income from the IMR entity (and entities connected with the IMR entity) is reduced to 70 per cent or less in the income year to qualify as an independent Australian fund manager. This will be a question of fact. [Schedule 7, item 1, subparagraph 842-245(1)(d)(iii)]

Example 7.9

Further to Example 7.8.

Lee, Ivar and Tanya subsequently engage another Australian fund manager Philomena to make various investments on their behalf. Philomena has only recently become a fund manager and so has no other clients. Accordingly, 100 per cent of Philomena's income is received from Lee, Ivar and Tanya.

However, provided Philomena is taking reasonable steps to bring her income from Lee, Ivar and Tanya below the 70 per cent threshold, such as actively seeking out new clients, then she qualifies as an independent Australian fund manager.

Consequences if an independent Australian fund manager is entitled to a share of at least 20 per cent of the IMR entity's profits

7.73 As noted in paragraph 7.71, if an independent Australian fund manager has a right to receive part of the profits of the IMR entity in an income year and the value of that entitlement exceeds 20 per cent of the net value of the IMR concession for that year (the 20 per cent profit test), then the IMR concession is reduced by the full amount of the fund manager's entitlement. This rule helps to ensure that the fund manager is genuinely independent and that the benefit of the concession is targeted to foreign resident investors. A fund manager's entitlement may take the form of a contingent entitlement or a direct or indirect right to part of the profits of the IMR entity and includes any entitlements of other entities connected with the fund manager. This ensures that carried interests of the fund manager are subject to the test, unless brought to tax in that income year. There are no consequences if the independent Australian fund manager's total entitlement is 20 per cent or less.

•

However, recognising that an independent Australian fund manager may have entitlements in the IMR entity that reflect its management role (rather than as an investor), some entitlements are excluded for the purposes of the 20 per cent profit test.

•

Furthermore, there may be some circumstances when an independent Australian fund manager's entitlements can temporarily exceed the 20 per cent profit test. The consequences of these circumstances are mitigated through the fund manager being able to test its entitlement across a qualifying period (rather than a single income year) or being able to demonstrate that the circumstances for breaching the test arose outside the control of the IMR entity, or the fund manager and entities connected with the fund manager, and that steps are being taken to address these circumstances.

The 20 per cent profits test has been designed so that an IMR entity applies the test in relation to each income year to determine if it needs to reduce the value of the IMR concession in that year. This avoids any complexity arising from an IMR entity having to lodge subsequent income tax returns for previous income years or seek amended assessments should any anticipated entitlements not eventuate. [Schedule 7, item 1, subsection 842-250(1)]

7.74 Similar to the exclusion of some of the independent Australian fund manager's entitlements to profits from being counted towards the total participation interest test in the IMR entity (as set out in paragraph 7.53), equivalent entitlements are excluded from counting towards the 20 per cent test. Specifically, an entitlement (including a contingent entitlement) that is taxable in the year it is received does not count towards the 20 per cent test. [Schedule 7, item 1, paragraph 842-250(1)(b) and subsection 842-250(8)]

7.75 The concept of the net value of the IMR concession is the unadjusted concessional amount. The unadjusted concessional amount is calculated by adding up all amounts made non-assessable non-exempt under the IMR concession plus all capital gains disregarded under the concession and subtracting all deductions and capital losses disregarded under the concession (including deductions that are disallowed because they relate to amounts non-assessable non-exempt income as a result of the IMR concession.

•

Should the independent Australian fund manager have an entitlement that exceeds the 20 per cent profit test in an income year, then the IMR entity would need to reduce the value of the IMR concession. This requires subtracting the amount of the fund manager's entitlement from the amount made non-assessable non-exempt under the IMR concession and, if necessary, reducing any disregarded capital gains by a proportional amount.

•

For example, if an IMR entity receives $100 non-assessable non-exempt income in an income year under the first limb of the IMR concession and its independent Australian fund manager has a total entitlement to $30 in the same income year, then the IMR entity would need reduce the amount of non-assessable non-exempt income it receives under the IMR concession to $70 (and, as a result, may have $30 brought to tax in Australia).

[Schedule 7, item 1, subsections 842-250(3), (4) and (5)]

7.76 However, as noted in paragraph 7.73, an IMR entity may not have to reduce the value of the IMR concession in a particular income year even if its independent Australian fund manager has an entitlement that exceeds the 20 per cent profits test. If the fund manager's entitlement does not, on average, exceed the 20 per cent profits test over a qualifying period (of up to five years) or the circumstances for the breach are outside the control of the IMR entity or the fund manager and the fund manager is taking steps to address these circumstances, then the IMR entity need not reduce the amount of the IMR concession.

7.77 For the purposes of the 20 per cent test, the qualifying period includes the relevant income year (the current year) as well as up to four consecutive preceding income years. The IMR entity (or the independent Australian fund manager) has complete choice each year over whichever combination of preceding income years to include in the qualifying period - this can include previous income years where the fund manager's entitlement is below the 20 per cent profit test. For example, the IMR entity could choose to include:

•

the percentage of the fund manager's entitlement in the current income year and the percentage of the fund manager's entitlement in the preceding income year;

•

the percentage of the fund manager's entitlement in the current income year and the percentage of the fund manager's entitlement in each of the preceding two income years;

•

the percentage of the fund manager's entitlement in the current income year and the percentage of the fund manager's entitlement in each of the preceding three income years; or

•

the percentage of the fund manager's entitlement in the current income year and the percentage of the fund manager's entitlement in each of the preceding four income years.

[Schedule 7, item 1, subsections 842-250(6) and (7)]

7.78 Alternatively, if the circumstances for the breach are outside of the control of the fund manager, or the IMR entity, then the IMR entity need not reduce the amount of the concession as long as the fund manager (or an entity connected with the fund manager) is taking steps to address these circumstances, with the intention that it satisfies the 20 per cent test. Of the two tests, this test is likely to be more important in relation to newly formed IMR entities that are being actively marketed where the fund manager needs to provide seed capital before seeking third party investors. This test may also accommodate situations when a keystone investor unexpectantly exits and the fund manager's entitlement correspondingly increases.

•

Although there is no express time limit on how long an independent Australian fund manager can continue to take steps to address the relevant circumstances before it fails this test, a fund manager that does not address the circumstances in a reasonable time may need to provide compelling evidence about the circumstances giving rise to the breach of the 20 per cent test to rebut any presumption that such circumstances are not outside the control of the fund manager or the IMR entity.

•

For example, if a fund manager's entitlement remains consistently about 20 per cent test or increases over time, then it would be hard to argue that the relevant circumstances arose out of its control and that it is taking steps to address those circumstances.

[Schedule 7, item 1, subsection 842-250(2)]

7.79 Although these two tests are mutually exclusive, there is nothing to stop an IMR entity from applying either test depending on its particular circumstances. For example, an IMR entity could choose to test its fund manager's entitlement over all of qualifying period combinations and, even if it exceeds the 20 per cent profit test, may still be able to show that the circumstances for the breach arose out of its control and that it is taking steps to address these circumstances.

Example 7.10

Rosifund is an independent Australian fund manager of an IMR entity. Starting in year 1, Rosifund and entities connected with Rosifund, are entitled to receive a share of the profits of the IMR entity in each year.

In year 1, Rosifund is entitled to $200 representing 40 per cent of the net value of the IMR concession. As this exceeds the 20 per cent test, Rosifund may test its entitlement over a qualifying period or show that the circumstances arose out of its control (or the control of the IMR entity) and that it is taking steps to address these circumstances.

•

As Rosifund and the IMR entity have only just come into existence, it is not possible to test Rosifund's entitlement over a qualifying period.

•

However, because of this, and the fact that it takes some time to build up the IMR entity to be widely-held, the circumstances of the breach are out of Rosifund's control and as long as the IMR entity is being actively marketed the value of the IMR concession need not be reduced.

In year 2, Rosifund's entitlement is 20 per cent and so the value of the IMR concession need not be reduced. There is no need to test Rosifund's entitlement over a qualifying period (or show that Rosifund is taking steps to reduce any circumstances outside of its control). In this year, the 20 per cent threshold is not exceeded and therefore the IMR entity remains entitled to the full IMR concession.

Similarly, Rosifund's entitlement is 20 per cent in years 3 and 4.

In year 5, Rosifund is entitled to a 30 per cent share of the profits.

•

Rosifund may test its entitlement over any qualifying period but as its entitlement in year 5 exceeds 20 per cent, and its entitlement in each of the four preceding years is not below 20 per cent, Rosifund's entitlement over the qualifying period exceeds 20 per cent.

•

However, if the circumstances for the breach arose outside of Rosifund or the IMR entity's control, such as the exit of a keystone investor, and Rosifund is taking steps to bring down its entitlement so that it does not exceed 20 per cent then the IMR entity is not required to reduce the value of the IMR concession by $150.

•

It would be unlikely that Rosifund could claim that the breach of the 20 per cent threshold because it is still in a start-up phase, particularly as Rosifund's entitlement has not exceeded 20 per cent in years 2 and 3. However, this would be a question of fact that depends on the specific circumstances.

In year 6, Rosifund's entitlement is 20 per cent. There is no need to test Rosifund's entitlement over a qualifying period (or show that Rosifund is taking steps to reduce any circumstances outside of its control, including those relating to year 5).

In years 7 and 8, Rosifund's entitlement is 15 per cent in each year.

In years 9 and 10, Rosifund's entitlement is 10 per cent in each year.

Consequential and other amendments

7.80 These amendments include guide material and an objects clause for Subdivision 842-I. [Schedule 7, item 1, sections 842-200 and 842-205]

7.81 These amendments add a reference to the IMR concession to the list of non-assessable non-exempt provisions in section 11-55. [Schedule 7, item 5]

7.82 These amendments remove redundant definitions in the dictionary in subsection 995-1(1) arising from the repeal of the previous Subdivision 842-I and replace them with references to new IMR-related definitions. [Schedule 7, items 6, 7, 8, 9 and 10]

7.83 These amendments also exclude business carried on by a partnership that solely relates to IMR financial arrangements from being used to determine if the partnership carries on business in Australia for the purposes of section 94T of the ITAA 1936 and therefore if the partnership is a resident for tax purposes. Importantly, these amendments do not exclude business carried on by the partnership (or the fund manager) for the purposes of the central management and control test in relation to the limited partnership definition in subparagraph 94T(1)(f)(ii) of the ITAA 1936. [Schedule 7, items 2 and 3]

'IMR foreign fund' technical corrections

7.84 These amendments also correct several technical deficiencies with the original definition of an 'IMR foreign fund' in Subdivision 842-I. Whilst the new Subdivision 842-I no longer relies on the concept of an 'IMR foreign fund' (instead relying on the concept of an 'IMR entity'), the definition of an IMR foreign fund continues to have ongoing application in relation to Element 1 of the IMR regime. Accordingly, these amendments provide foreign entities with the choice of applying alternative tests to determine whether they are an IMR foreign fund for the purposes of the earlier amendments. [Schedule 7, item 12, subsection 842-208(1) of the IT(TP)A 1997]

7.85 These tests incorporate the definition of 'IMR entity' but with some modifications to better match the earlier requirements to be an IMR foreign fund - this includes ensuring the entity meets the requirements to be a widely held IMR entity based on the total participation interests in the entity. [Schedule 7, item 12, subsections 842-208(2) and (3) of the IT(TP)A 1997]

7.86 A foreign entity that makes this choice also has the benefit of the amendments to section 94T of the Income Tax Assessment Act 1936 that would otherwise apply only from the 2011 12 income year. [Schedule 7, item 12, section 842-209]

7.87 This is necessary as the amendments to section 94T exclude business carried on by a partnership that solely relates to an IMR financial arrangement from being used to determine if the partnership carries on business in Australia.

Application and transitional provisions

7.88 These amendments commence on Royal Assent.

7.89 These amendments apply in relation to the 2015-16 income year and later income years. [Schedule 7, item 11 and item 12, paragraph 842-207(1)(a) of the IT(TP)A 1997]

7.90 In addition, a taxpayer may choose to apply the new Subdivision 842-I in relation to the 2011-12, 2012-13, 2013-14 and 2014-15 income years. [Schedule 7, item 11 and item 12, paragraph 842-207(1)(b) and subsection 842-207(2) of the IT(TP)A 1997]

7.91 The IMR foreign fund technical corrections, in effect, apply on an optional basis to the 2010-11 and earlier income years. [Schedule 7, item 12, section 842-208 of the IT(TP)A 1997]

7.92 Taxpayers that choose to apply these transitional arrangements need not notify the Commissioner of Taxation about this choice. Instead, the taxpayer's business records can provide sufficient evidence of this choice.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Investment manager regime

7.93 This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

7.94 This Schedule amends the Income Tax Assessment Act 1997 and the Income Tax (Transitional Provisions) Act 1997 to implement the third and final element of the investment manager regime (IMR) reforms.

7.95 The IMR ensures that foreign investors are not subject to Australian income tax on their investments when they invest through an independent Australian fund manager or when the foreign investor is a widely held foreign entity investing in specific types of Australian assets.

7.96 These reforms extend the IMR to cover a broader range of investments as well as make changes to the eligibility criteria for foreign investors.

7.97 Although the amendments introduced by this Schedule have some retrospective application, the optional nature of this application means the effect of this on taxpayers and other foreign investors is entirely beneficial.

Human rights implications

7.98 This Schedule does not engage any of the applicable rights or freedoms.

Conclusion

7.99 This Schedule is compatible with human rights as it does not raise any human rights issues.