Business structure

On this page:

Consolidation

Consolidation allows wholly-owned corporate groups to operate as a single entity for income tax purposes. Issues that attract our attention include:

CGT consequences

We focus on the reporting of capital gains or losses related to consolidation.

Situations that attract our attention include:

  • corporate groups that restructure and have one or more consolidated groups within a private group
  • where multiple entities join or leave the consolidated group
  • incorrectly reporting capital gains or losses arising from the annual compliance arrangement (ACA) calculation and allocation process on joining or leaving the consolidated group. For example, a head company not reporting a capital gain when a negative ACA occurred from an entity leaves the group.

See also:

Cost-setting rules

We focus on the:

  • allocable cost amount (ACA) calculation
  • allocation on joining or leaving a consolidated group.

Situations that attract our attention include:

  • restructuring that may affect the ACA calculation, before joining, forming or leaving a consolidated group
  • on joining a group  
    • miscalculating or overstating the ACA. Examples include the costs of membership interests or the accounting liabilities of the joining entity
    • inappropriately including or excluding assets before allocating the ACA to assets
    • incorrectly allocating the ACA to assets which results in increased revenue deductions or cost bases of CGT assets. Examples include using inappropriate market values or incorrectly making relevant adjustments
  • on leaving a group  
    • incorrectly calculating the ACA, for example, excluding or understating liabilities
    • incorrectly allocating the ACA to the membership interests and treatment of pre-CGT shares (if any).

     

Membership

We focus on the formation of a consolidated group and the eligibility of members.

Situations that attract our attention include:

  • the incorrect formation of a consolidated group
  • incorrectly including or excluding an entity as a member of a consolidated group
  • late notifications of entries or exits from a consolidated group.

Losses

We focus on whether the available fraction has been correctly calculated and losses correctly used.

Situations that attract our attention include:

  • incorrectly including or excluding an entity as a member of a consolidated group, where it may cause unintended tax benefits
  • incorrectly transferring or using losses
  • high available fractions that, if incorrect, would allow a consolidated group to use transferred losses at an inappropriate rate
  • failing to adjust the available fraction as required.

Demergers

A demerger involves the restructuring of a corporate group by splitting its operations into two or more entities or groups. When a demerger happens, the shareholders of the head entity of the group acquire a direct interest in the demerged entity.

The demerger provisions offer CGT and income tax relief at both the entity and shareholder level. This tax relief is intended for genuine demergers that offer business benefits through restructuring. Demergers should not be undertaken to achieve a tax benefit.

Situations that attract our attention include:

  • disposing of the demerged entity or business after the demerger event
  • shareholders acquiring more than their share of the new interests in the demerged entity
  • schemes aiming to inappropriately obtain CGT rollover concessions through a corporate restructure that does not satisfy the demerger requirements
  • demergers that appear to have been undertaken to obtain a tax benefit rather than to improve business efficiency
  • demergers that eliminate or significantly reduce assessable capital gains or dividends.

See also:

International transactions

International transactions that attract our attention include:

Capital gains withholding

Foreign resident capital gains withholding applies to disposals of certain taxable property under contracts entered into from 1 July 2016.

Situations attract our attention where there is a disposal of:

  • real property with a market value of at least $750,000 and both  
    • the foreign resident vendor did not apply for a clearance certificate or a withholding variation
    • the purchaser has not paid a withholding amount.
  • membership interests in an Australian entity that owns substantial real property assets and the foreign resident vendor held a material ownership interest in the entity.

See also:

Diverted profits tax

The diverted profits tax (DPT) aims to:

  • ensure that the tax paid by significant global entities (SGE) properly reflects the economic substance of their activities in Australia
  • prevent the diversion of profits offshore through arrangements involving related parties. 

Entities entering into cross-border transactions with related parties attract our attention where:

  • the profit made by each entity does not reflect the economic substance of the entity’s activities in connection with the scheme
  • one or more of the entities entered into or carried out the scheme for the principal purpose of obtaining an Australian tax benefit, or both an Australian and foreign tax benefit.

See also:

Foreign residents

Foreign residents can disregard a capital gain or loss from a CGT event (such as a disposal) unless that CGT asset is taxable Australian property (TAP). TAP comprises:

  • taxable Australian real property (TARP)
  • indirect Australian real property interests
  • assets used in carrying on a business through a permanent establishment
  • an option or right to acquire any of the above assets.

Foreign residents disposing of TARP are expected to lodge returns advising of any gain or loss.

Foreign residents attract our attention in situations where they:

  • dispose of TARP or indirect interests but do not meet their CGT obligations in relation to the disposal
  • characterise or value assets in a way to come within the CGT exclusion.

See also:

Foreign ships with dealings in Australian waters

Where foreign ships with dealings in Australian waters are liable to tax under Division 12 of the ITAA 1936, we focus on:

  • the non-lodgment of voyage returns
  • shipping agents not withholding or remitting the freight tax on behalf of the foreign ships.

Voyage returns that do not reconcile with shipping information from harbour authorities or customs attract our attention.

See also:

Hybrid mismatch rules

Enacted in 2018, the hybrid mismatch rules aim to prevent multinational companies from gaining an unfair competitive advantage by avoiding income tax or obtaining double tax benefits through hybrid mismatch arrangements. These arrangements exploit differences in the tax treatment of an entity or instrument under the laws of two or more tax jurisdictions.

The hybrid mismatch rules apply to payments that result in hybrid mismatch outcomes such as:

  • where a payment is deductible in one jurisdiction and non-assessable in the other jurisdiction
  • where one payment qualifies for a tax deduction in two jurisdictions
  • where a payment indirectly funds a hybrid mismatch in another jurisdiction.

These rules will neutralise hybrid mismatches by cancelling deductions or including amounts in assessable income.

Although most of these rules will only apply to income years commencing on or after 1 January 2019, you may want to review your arrangements. PCG 2018/7Part IVA of the Income Tax Assessment Act 1936 and restructures of hybrid mismatch arrangements provides guidance on when restructures may attract our attention.

See also:

Intangible assets

We review international arrangements that incorrectly characterise either intangible assets, or activities or conditions connected with intangible assets.

Taxpayers may engage in operations that require the use or enjoyment of intangible assets developed, maintained, protected or owned in a foreign jurisdiction. We are concerned when these taxpayers fail to pay, or recognise payment of, a royalty under Australia’s tax treaties and laws.

In these circumstances, there is typically a significant mismatch between the substance of the relevant parties’ operations and the form of their legal agreements. There is also generally an incorrect characterisation of the relevant assets and activities performed in connection with such assets.

In particular, we are concerned that:

  • parties to arrangements of this type may not comply with Australian royalty withholding tax obligations associated with consideration for the use of intangible assets, under Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953
  • the analysis or methodology used to determine the arm’s length conditions or profits connected with these arrangements may result in parties obtaining a transfer pricing benefit for the purposes of Division 815 of the ITAA 1997
  • such arrangements may be entered into or carried out for the dominant or principal purpose of obtaining a tax benefit. This may attract the application of Part IVA of the ITAA 1936 or the diverted profits tax or both.

See also:

International dealings schedule – non-lodgment

We focus on tax returns and other information indicating that an international dealings schedule may be required but has not been lodged.

See also:

Non or under-reporting attributable foreign income

We focus on Australian entities that have incorrectly reported attributable foreign income. This includes Australian corporate tax entities with offshore activities that have repatriated their income as a foreign equity distribution that is non-assessable non-exempt income (NANE) (see section 768-5 of the ITAA 1997).

Situations that attract our attention include:

  • the country in which a controlled foreign company (CFC) or transfer or trust (TT) is located is unlisted
  • the income being generated through a CFC is tainted
  • fund movements are contrary to where the CFC or TT is located
  • there is a sudden drop in attributable foreign income without a change in the number of CFCs or TTs
  • the amount of NANE income reported has increased from the previous year but no attributable foreign income has been reported for the current and prior years
  • entities that have large claims for deductions, under section  25-90 of the ITAA 1997, for outgoings incurred in deriving NANE income.

See also:

Non-resident withholding tax – interest or royalty

We focus on:

There are discrepancies between the amounts:

  • claimed as deductions for interest or royalty payments on the tax return
  • reported as withheld and paid on the activity statement or annual report.

See also:

Significant global entities

Certain measures only apply to entities that meet the definition of a significant global entity (SGE). The SGE concept is not limited to entities that are members of a multinational group. An SGE can also be an entity in a group that only operates in Australia. A privately owned entity can be a SGE.

SGE entities may be face particular reporting obligations, increased penalties and compliance measures including:

We focus on entities that:

  • meet the SGE definition but do not identify as one on their tax returns
  • fail to lodge relevant and complete documentation as required.

See also:

Residency

We focus on individuals and trusts changing, or trying to change, their tax residency before or during restructures of their family group, with the aim of:

  • obtaining tax benefits on the disposal of CGT assets
  • making tax-free distributions to associates.

Other situations that attract our attention include when tax has not been paid on:

  • an entity’s assets when ceasing to be an Australian resident
  • a resident entity’s worldwide income.

Section 23AH non-assessable non-exempt income

We focus on an Australian company’s overseas branch or permanent establishment income that has been incorrectly recognised as non-assessable non-exempt (NANE) branch income under section 23AH of the ITAA 1936. We also focus on the deductions being claimed by the Australian company which were incurred in deriving section 23AH NANE branch income and are therefore not deductible.

Situations that attract our attention include:

  • there is no permanent establishment but section 23AH NANE income is declared
  • a permanent establishment may not have passed the active income test and the income is both  
    • adjusted tainted income
    • eligible designated concession income (this applies to permanent establishments in listed countries only
  • there are low non-deductible expenses but section 23AH NANE income is declared.

See also:

Thin capitalisation

We focus on Australian and foreign entities that have multinational investments and whose debts exceed 60% of the net value of their Australian investments.

An entity attracts our attention if it has:

  • failed to lodge the international dealings schedule when required
  • reported a large amount of overseas interest expense on the tax return and has not completed the thin capitalisation section
  • failed the safe harbour debt test, arm’s length debt test or worldwide gearing test (based on the international dealings schedule) and has not declared the debt deduction disallowed.

See also:

Transfer pricing – related party dealings

We focus on income or profits generated in Australia that are not being subjected to domestic tax due to non-arm’s length conditions of international related party dealings.

Situations that attract our attention include:

  • paying or receiving a non-arm’s length amount for goods and services, including intellectual property
  • paying non-arm’s length prices to generate excessive losses or expenses domestically while shifting gains or revenue outside the jurisdiction
  • related party debt with interest rates or features that differ from what would be expected between independent parties
  • offshore hubs that derive high profits from marketing or procuring goods or services for Australian operations
  • intellectual property arrangements involving inadequate reward for  
    • value contributed from Australia
    • non-arm’s length migration of rights in Australian-created property
  • business restructures that shift Australian assets or operations offshore without arm’s length compensation for their value or any associated benefit.

See also:

Lower company tax rate

The lower company tax rate applies to a company that is a base rate entity (or a small business entity for the 2015–16 and 2016–17 income years). The company tax rate of 30% applies to all other companies.

We recognise that the majority of companies will apply the correct tax rate. However, we will focus on artificial or contrived arrangements to change the company tax rate.

See also:

Professional firms

In 2017, we reviewed the:

The review found the guidelines are being misinterpreted for arrangements that go beyond the scope of the guidelines.

Examples of arrangements with high risk factors that concern us include those that lack any meaningful commercial purpose for the:

  • disposal of an equity interest through multiple assignments
  • creation of new discretionary entitlements (such as dividend access shares)
  • use of amortisation leading to differences between tax and accounting income
  • disregard CGT consequences or inappropriately access CGT concessions
  • involve assignments where profit sharing is not directly proportionate to the equity interest held
  • create artificial debt deductions
  • undertake an assignment to dispose of an equity interest to a self-managed super fund
  • involve assignments where the arrangement is not ‘on all fours’ with the principles of Everett and Gulland.

In light of these concerns, we suspended the application of the guidelines and Everett Assignment web material as of 14 December 2017. Individual professional practitioners thinking of entering into new arrangements should engage with us through Early engagement or contact us via Professionalpdts@ato.gov.au.

For those who have entered into arrangements before 14 December 2017, if you:

  • comply with the guidelines and do not exhibit high risk factors you can rely on those guidelines
  • exhibit any of the high risk factors you may be subject to review.

If you are uncertain about how the law applies to your existing circumstances, engage with us as soon as possible.

We are consulting with interested stakeholders on:

  • replacement guidelines
  • the application of any transitional arrangements.

If you have any questions, email ProfessionalPDTS@ato.gov.au

See also:

  • TA 2013/3Purported alienation of income through discretionary trust partners

Property and construction

Where entities have conducted property development, we focus on how they include the profit or income from those activities on their tax returns. A particular focus is how the income should be classified, depending on whether the development was:

  • part of a business of property development
  • undertaken for a profit making purpose.

Situations that attract our attention include:

Research and development tax incentive

The ATO and AusIndustry (on behalf of Innovation and Science Australia) jointly administer the Research and Development (R&D) tax incentive. The incentive aims to support companies that undertake eligible R&D activities. AusIndustry administers the registration and compliance of the R&D activities. We are responsible for the R&D expenditure claimed on the tax return.

We focus on claims:

  • made by entities in particular industries
  • related to particular behaviours.

Four industries of concern have been identified:

  • agriculture
  • building and construction
  • mining
  • software development.

Particular behaviours of concern are:

  • claiming the R&D tax offset on business as usual expenses
  • apportionment of overheads between eligible and non-eligible R&D activities
  • payments to associates
  • whether or not expenses have been incurred
  • approaches taken by R&D consultants
  • fraudulent claims
  • failure to keep records.

See also:

  • Research and development tax incentive
  • TA 2015/3Accessing the R&D tax incentive for ineligible broadacre farming activities.
  • TA 2017/2Claiming the Research and Development tax incentive for construction activities
  • TA 2017/3Claiming the Research and Development tax incentive for the ordinary business activities
  • TA 2017/4Claiming the Research and Development tax incentive for agricultural activities
  • TA 2017/5Claiming the Research and Development tax incentive for software development activities

Self-managed super funds

With self-managed super funds (SMSFs), we focus on incorrect treatment of transactions that attract a concessional tax rate.

Our attention is attracted by:

  • significant management and administration expenses
  • personal services income diverted to SMSFs
  • incorrect calculation of exempt current pension income
  • incorrect treatment of related party transactions and non-arm’s length income.

We know some schemes target Australians planning for their retirement and encourage people to channel money inappropriately through their SMSF.

The Super Scheme Smart aims to educate individuals and their advisers about these schemes.

These schemes have some common features. They:

  • are artificially contrived with complex structures, usually connecting with an existing or newly created SMSF
  • involve a significant amount of paper shuffling
  • are designed to give the individual minimal or zero tax or a tax refund
  • aim to give a present day tax benefit by adopting the arrangement
  • sound too good to be true and, as such, they generally are.

See also:

Trusts

Trust issues that attract our attention include:

Capital loss trust moved into group

Trusts with significant capital losses that have recently moved into a group attract our attention. In this situation, entities within the new group may attempt to take advantage by distributing capital gains to the capital loss trust.

See also:

Circular trust distributions

A circular trust distribution exists where a trust (the first trust) makes a distribution to a second trust. Then all or part of that distribution goes back to the first trust as a distribution from either the second or another trust.

We want to make sure that the trustees have complied with their obligations to trustee beneficiary non-disclosure tax. This includes trustees of family trusts for income years starting on or after 1 July 2019.

We focus on those circular trust distributions if tax has not been paid on some or all of the distribution because:

  • one or more beneficiaries understate the trust amounts included in the beneficiary’s assessable income
  • there is an unbroken circular trust distribution between two or more trusts.

See also:

Distributions to complying superannuation funds

We focus on distributions from trusts to complying superannuation funds (including SMSFs). Any non-arm’s length income should be taxed in the superannuation fund at the top marginal tax rate.

We look for complying superannuation funds (generally SMSFs) that receive income distributions from a trust, where the distributions result from:

  • the exercise of a discretion of the trustee
  • a fixed entitlement with one or more of the following features  
    • the fixed entitlement was not acquired on arm’s length terms
    • the fixed entitlement was acquired using a loan from a related lender who is not on arm’s length terms
    • the acquisition of assets within the trust was facilitated by loans between related parties which are not on arm’s length terms
    • the rate of return received from the investments of the superannuation fund is not consistent with an arm’s length return.

See also:

Distributions to tax-preferred beneficiaries

We focus on distributions to tax-preferred beneficiaries that may have be used by trustees to attempt to reduce the amount of tax paid on the trust’s net income (as calculated under section 95 of the ITAA 1936).

Tax-preferred beneficiaries include:

  • tax-exempt entities
  • entities that deduct excess deductions and tax losses against their share of the trust’s net income
  • entities that apply capital losses or carried forward net capital losses against their share of the trust’s capital gains
  • entities that pay lower or nil rates of tax
  • entities that lack the financial means to pay tax
  • non-resident beneficiaries that are entitled to trust amounts that are subject to withholding tax
  • non-resident beneficiaries where the assessable income of the resident trust includes  
    • amounts from sources outside of Australia
    • net capital gain.

Situations that attract our attention include where:

  • a tax-preferred beneficiary becomes entitled to an amount that is favourably taxed because of their characteristics
  • the entitlement of the tax-preferred beneficiary is not paid to them or is applied to someone else
  • the tax-preferred beneficiary has been recently introduced into the trust, or has a weak social or economic connection with the persons controlling the trust
  • steps were taken to change the character of the trust income so that the income of the tax-preferred beneficiary is taxed favourably taxed
  • the tax-preferred beneficiary is not able to pay the tax due on the trust entitlement
  • the tax-preferred beneficiary is tax-exempt, whether or not the requirements in sections 100AA and 100AB of the ITAA 1936 have been met
  • no tax has been assessed on the trust’s capital gains which relate to a non-resident beneficiary’s entitlement.

See also:

Differences between distributable and net income

We focus on tax-preferred beneficiaries, including private companies, where their distributable income is significantly less than the net income.

Whether or not this behaviour is considered tax avoidance depends on the case. Examples of tax avoidance include where:

  • distributable income is understated – for example, loss integrity rules may limit the losses that beneficiaries can deduct
  • distributions are made (supposedly) to entities that are not beneficiaries – for example, Division 7A may apply where the differences have been exploited in extracting profits from a private company
  • arrangements are specifically designed to obtain a tax benefit – for example, Part IVA may apply to more contrived differences.

Situations that attract our attention include where:

  • a trust has:  
    • a small amount of distributable income and a large amount of net income
    • supposedly made a tax-preferred beneficiary entitled to that distributable income
    • a difference between distributable income and net income which was either retained in the trust or extracted from the trust in a tax-concessional for
  • steps have been taken to create or increase the difference between distributable and net income, or to include the tax-preferred entity as a beneficiary
  • the trust deed was not been followed when calculating distributable income or assigning distributable income to beneficiaries
  • the income of the trust includes franked dividends from a private company.

See also:

  • TA 2013/1Arrangements to exploit mismatches between trust and taxable income
  • TA 2016/12Trust income reduction arrangements
  • TD 2018/13Income tax: Division 7A: can section 109T of the Income Tax Assessment Act 1936 apply to a payment or loan made by a private company to another entity (the ‘first interposed entity’) where that payment or loan is an ordinary commercial transaction?
  • Tax issues for trusts – tips and traps

Family trust distributions tax

We focus on:

  • a trust that has a family trust election in place (family trust) which is distributing outside their family group
  • distributions to entities outside the family group by a trust, partnership or company which has made an interposed entity election (IEE) to be included in the family group of a family trust
  • instances where an individual beneficiary incorrectly returned an amount on which family trust distributions tax (FTDT) has been paid.

See also:

Income versus capital

Where a trust that is carrying on a business has a significant net capital gain that is greater than the business income of the trust, this attracts our attention. We focus on trusts that are:

  • carrying on a business of selling an asset
  • selling an asset as part of a profit-making undertaking.

They are not allowed to claim the 50% CGT discount on profits from those sales.

It can be inappropriate for property developers to set up special purpose trusts and classify profits from the sale of the property as capital in order to claim the 50% CGT discount. These profits should be classified as revenue for tax purposes because the property is sold as part of a business or a profit-making undertaking.

See also:

  • TA 2014/1Trusts mischaracterising property development receipts as capital gains

Non-lodgment

If a trust has derived income, they will have to lodge a return, irrespective of the amount of income, unless exempted by the Commissioner.

Prompt lodgment of trust returns is integral to the integrity of the tax system. We rely upon the details provided in trust and beneficiary tax returns to satisfy ourselves that the appropriate amount of tax has been paid through the undertaking of tax assurance activities.

We focus on non-lodgment of trust and beneficiary tax returns. We use information matching techniques to identify returns that are overdue or where there is a potential mismatch.

Situations that attract our attention include where:

  • a trust fails to lodge a trust tax return by the due date, particularly if there are a number of returns overdue
  • a beneficiary of a trust fails to lodge their tax return by the due date
  • an entity, that is in a privately owned group with a trust, fails to lodge their tax return by the due date
  • there are mismatches between the trust tax return and a beneficiary’s tax return (or information obtained from a third-party).

Potential reimbursement agreements

We focus on arrangements that may constitute reimbursement agreements. These agreements involve making distributions to lower taxed beneficiaries while the economic benefits are directed to another entity. The other entity is often a controller of a privately owned group, close relatives of the controller or an entity within such a group.

We are concerned that some of these arrangements have been entered into in order to avoid tax.

See also:

Revenue loss trust moved into group

Trusts with significant revenue losses that have recently been moved into a group attract our attention. We focus on the carrying forward and use of revenue losses by a trust, to ensure the trust loss measures restrictions are applied.

See also:

Value extraction – luxury assets

We focus on trusts holding luxury assets (such as luxury boats) for personal use by the beneficiaries. We ensure they are not claiming deductions for the operating expenses of these assets to offset income from the trusts’ business activities.

Situations that attract our attention include where:

  • the funds used to acquire a luxury asset held in a trust were from a private company, superannuation fund, unpaid income entitlements of low tax beneficiaries or unexplained wealth
  • the trustee is claiming deductions for losses or outgoings relating to the luxury asset but the deductions do not relate to assessable income
  • outgoings are claimed for the luxury asset that apparently reduce the distributable income.

See also:

Value extraction and corpus distributions

Capital distributions, or entitlement to corpus, may involve extracting value from a trust in a non-assessable form (subject to the CGT events, section 99B and the specific entitlement rules in Subdivision 115-C of the ITAA1997).

Situations that attract our attention include when the:

  • corpus entitlement is satisfied  
    • by an unrealised capital gain
    • by using an unpaid income entitlement of a tax-preferred beneficiary
    • by accessing value in another entity, such as a company or a superannuation entity
  • capital distribution is funded from, or causes, a difference between the trust’s distributable and net income
  • transfer of assets occurs to another trustee who intends both  
    • to hold them as a separate trustee on the same trust under a trust splitting arrangement
    • that the transfer should not trigger CGT events E1 and E2
  • trustee has borrowed money to satisfy the corpus entitlement and is claiming deductions for the loan interest.

See also:

Find out about other areas that attract our attention:

Consolidation, demergers, international transactions, the lower company tax rate, professional firms, property and construction, R&D, SMSFs and trusts currently attract our attention.