Consolidation minutes, June 2008
Consolidation minutes, June 2008
Venue:
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Stamford Plaza
111 Little Collins Street
Melbourne
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Date:
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Thursday 12 June 2008
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Start:
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10.00am
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Finish:
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1.00pm
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Chair:
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John Evans
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Contact:
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Karin Collinson
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Contact phone:
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(08) 9268 5083
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Attendees
John Evans
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Tax Office
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Mike Slattery
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Tax Office
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Sandra Peacock
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Tax Office
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Mark Kelly
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Tax Office
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Tony Regan
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Treasury
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Andy Milton
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Tax Office
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Andrew Lindsay
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Tax Office
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Suzanne Trumble
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Tax Office
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Karin Collinson
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Tax Office
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Paul Corrie
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Tax Office
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Joseph Camenzuli
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Tax Office
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Lindsay Hanham
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Tax Office
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An Ton
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Tax Office
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Susan Cantamessa
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ICAA
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Michael Charles
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KPMG
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Julian Cheng
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CPAA
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Andrew Clement
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Law Council
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Richard Czerwick
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ICAA
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Frank Drenth
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CTA
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Matthew Hayes
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TIA
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John Kelly
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NIA
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Alexis Kokkinos
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ICAA
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Geoff Lehmann
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TIA
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Peter Murray
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TIA
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Mel Nash
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Deloitte
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David Romans
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PwC
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Ken Spence
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TIA
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Tony Stolarek
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ICAA
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Sue Stroud
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CTA
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Gordon Thring
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CPAA
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Kevin Jones
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CTA
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John Kelly
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NIA
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Richard Hendriks
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ICAA
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Apologies
Grant Cathro
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Lance Cunningham
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Richard Hendriks
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Ray Conwell
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Professional bodies represented
Australian Taxation Office
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Tax Office
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CPA Australia
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CPAA
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Corporate Tax Association
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CTA
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Deloitte
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Deloitte
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Institute of Chartered Accountants in Australia
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ICAA
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KPMG
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KPMG
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Law Council of Australia
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Law Council
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National Institute of Accountants
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NIA
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PricewaterhouseCoopers
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PwC
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Taxation Institute of Australia
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TIA
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Disclaimer
NTLG Consolidation Sub-group agendas, minutes and related papers are not binding on the Tax Office or any of the other bodies referred to in these papers. The Commissioner of Taxation has instilled a more open philosophy and process with the National Tax Liaison Group and the sub-groups. As such, minutes of NTLG Consolidation Sub-group meetings will now be published well before the meeting date on which members accept or modify the minutes under normal meeting protocols. This version of the minutes is available for member associations to share more widely on the understanding that formal endorsement is yet to occur.
The Chair noted the apologies.
Members had no comments in relation to the minutes of 21 November 2007 meeting. The minutes were received.
The Chair thanked the members for their positive feedback in relation to the recent review of the sub-groups operations.
The Chair noted that there has been a number of consolidation related cases heard in the last six months:
- Envestra
- Hastie, and
- Handbury (in which the decision has not yet been handed down).
Action item
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1/28 June07 (tax sharing agreements and the clear exit provisions).
Mark Kelly, Operations (Policy and New Measures) addressed this item.
As previously advised, the Tax Office proposes to deal with other concerns regarding the calculation of clear exit payments in various scenarios and the 'reasonable estimate' requirement under section 721-35 in an expansion of Chapter 35 of Law Administration Practice Statement PS LA 2006/11 ATO Receivables Policy. This chapter is still in the process of being updated.
Members were invited at the last meeting to suggest solutions to the single/multiple liability issue. One submission has been received.
Members' concerns have been referred to Treasury.
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Action item
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From agenda item 5/28June07 (Subdivision 705-C for non-consolidated groups).
(NTLG Consolidation Sub-group issue 17.08)
Lindsay Hanham, Consolidation Centre of Expertise, addressed this issue.
This ruling topic has been withdrawn from the Public Rulings Program and will be considered as part of ongoing discussions between the Tax Office and Treasury in relation to the consolidation regime.
Members were invited at the last meeting to provide examples/scenarios where they think Subdivision 705-C should apply. No examples have been received.
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Action item
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2/28Jun07 (intra-group assets and the exit history rule).
The issue of intra-group assets and the exit history rule was addressed at agenda item 3.
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Action item
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5/28Jun07 (trusts joining and leaving a consolidated group during an income year).
Consolidation reference manual material is being considered.
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Action item
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From agenda item 13/28June07 (straddle contracts).
(NTLG Consolidation Sub-group issue 14.01a)
Sandra Peacock, Tax Counsel Network addressed this item.
A number of Draft Tax Determinations have been developed and limited consultation with members has occurred. The Draft Tax Determinations are to be released shortly.
Note: Draft Tax Determinations TD 2008/D9, TD 2008/D10 and TD 2008/D11 issued on 25 June 2008. On 3 July 2008 a technical discussion paper entitled was released on the Tax Office website.
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Paul Corrie from the Consolidation Centre of Expertise addressed this item.
Paul advised members that only one additional intra-group asset issue came in since the last meeting. That issue involved a scenario in which an entity was brought into the consolidated group and it held shares in the head company. ATO Interpretative Decision (ATO ID) 2008/32 shows that the entity can be a subsidiary member of the consolidated group. There is a Corporations Law requirement that something be done within 12 months to ensure that the controlled entity does not continue to hold shares in the controlling entity. The issue is what tax recognition, if any, should be given to the tax cost setting amount/economic cost of shares held in the controlling entity. This may be impacted by the proposed changes to section 701-55(6).
Sandra Peacock noted that this issue will be considered as part of the single entity rule (SER) project. No further products will be issued in the near future, but the Tax Office will be working with Treasury to get a better understanding of intra-group asset issues and to consider possible solutions. She invited members to forward any additional intra-group asset and SER issues for consideration. An update will be provided at the next meeting.
Lindsay Hanham from the Consolidation Centre of Expertise addressed this item.
Lindsay advised that some preliminary analysis has been conducted on the application of the Part 3-90 consolidation membership and cost setting rules to an entity which for Australian income tax purposes is a foreign hybrid due to the application of Division 830, and which is wholly owned by a consolidated group. The Tax Office is continuing to look at this issue.
There was some discussion of withdrawn ATO ID 2007/63. In response to a question, the Chair noted that this ATO ID was withdrawn because it wasn't a product that should have been issued. There was some discussion regarding the ATO ID and it was suggested by Mr Lehmann that it was appropriate that it should have been withdrawn because while it was carefully worded and noted that it did not consider laws dealing with international taxation nor any interaction of those laws with the single entity rule, nevertheless there could have been some people who might have misunderstood the message in the ATO ID.
Mr Lehmann discussed his views of the effect of the SER in relation to intra-group transactions.
Paul Corrie of the Consolidation Centre of Expertise addressed this issue.
ATO ID 2005/211 states that the capital gains tax (CGT) cost base of a trade debt that arose from the provision of services is nil.
This interpretation results in the following issues:
- there may be double taxation as a result of the same amount being assessed as ordinary income as well as a capital gain. ATO ID 2008/110, addressing this issue, was published on 8 August 2008.
- Section 705-75(2) reduction for intra-group liabilities. Based on ATO ID 2005/211, the Allocated Cost Amount (ACA) calculation for the debtor is reduced by the full amount of the trade debt. This appears to be an inappropriate result.
The Tax Office has considered the matter and will be raising the issue with Treasury.
Karin Collinson of the Consolidations Centre of Expertise addressed this agenda item.
She advised that in accordance with Draft Tax Ruling TR 2007/D10, subsection 705-65(5B) does not apply to an arrangement to acquire membership interests in an entity that as a result of the arrangement becomes a member of a consolidated group, and:
- one or more of the payments under the arrangement is after the entity's joining time and is contingent and unascertainable at that time, and
- the arrangement is a standard earnout arrangement or reverse earnout arrangement as described in Taxation Ruling TR 2007/D10.
In such a case, any payments under the earnout arrangement do not give rise to errors for the purposes of Subdivision 705- E and CGT event L6.
However, subsection 705-65(5B) will still apply to arrangements that fall within its terms and are not standard earnout arrangements or reverse earnout arrangements. It will also apply to standard earnout arrangements that are entered into prior to 17 October 2007 to which Taxation Ruling TR 93/15 would have applied and where following TR 93/15 would have resulted in a more favourable outcome for the taxpayer.
A discussion paper was available at the meeting titled Earnout arrangements and Consolidation: ramifications of TR 2007/D10.
A member asked whether payments made as a result of standard earnout arrangements to which subsection 705-65(5B) does not apply would be deductible under section 40-880. The question was taken on notice, and an update will be provided at the next meeting.
Lindsay Hanham of the Consolidation Centre of Expertise addressed this item.
This item is work in progress. A matrix is being developed to analyse the accounting standards and Division 974 income tax rules for debt and equity against the legislation for both the joining and leaving allocable cost amounts. When finalised, any identified problems will be conveyed back to this sub-group and Treasury informed.
It was agreed that the highest priority for the moment is the development work on new legislation, and the work being done on the current priority A matters. No new high priority issues were raised by members.
The imminent retirement of Geoff Lehmann was announced. The Chair observed that Mr Lehmann is a man of great intellectual capacity and integrity who has contributed to the working of the sub-group, and prior to that, the consultative working party, for almost a decade. His contribution has been very valuable and he will be missed.
Ken Spence on behalf of the members echoed the sentiments of the Chair.
John Evans suggested that since a significant amount of consolidation related legislation was likely to be introduced into Parliament very late this year, it might be preferable to hold the next meeting in February 2009. Members agreed with the approach, on the basis that this would not mean a deferral of the subsequent meeting, that is, there would still be a meeting in June 2009.
The next meeting has subsequently been scheduled for 26 February 2009.
Last Modified: Friday, 21 May 2010
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