Large Business Stewardship Group key messages 21 April 2021

Co-chair opening comments

In line with the charter and the membership term of two years, Co-chair Rebecca Saint introduced new members and thanked exiting members for contributions they have made over the years.

Rebecca highlighted that Stewardship groups operate in an environment of transparency, however members are required to maintain the confidentiality of information that is declared confidential. If members are unsure whether information is confidential, they are encouraged to seek confirmation.

Justified trust

Members were provided papers on:

• an update on the Top 1,000 Combined Assurance Reviews
• an update on Top 100 program and the external guidance on the ‘Monitoring and Maintenance’ approach which is being finalised and will be published shortly.

Draft third party data testing guide

The ATO will respond to the members' request for clarity on the determination of the meaning of independence in relation to independent testing for GST.

Members suggest that guidance on the independent testing and how clients can do this internally will be helpful and cost effective in reducing outsourcing.

It was agreed that an out of session working group would be formed that would focus on governance principles for Top 1,000. An expression of interest will be sent to all members.

Top 1,000 program

The ATO provided an overview of the progress of the program. The majority of the taxpayers involved have provided complete responses. The ATO shared insights including that compliance costs are seen to be down by doing the top up review.

The ATO expressed an aspiration to publish the standard Request For Information and provide early notification to enable the taxpayer to plan for the review. ATO is also considering the types of guidance that can be published to assist Taxpayers when addressing the Request For Information.

Reportable Tax Position Schedule

The ATO provided background of the consultation for the Reportable Tax Position (RTP) schedule and changes adopted to address timing of new questions. Instructions were published on 22 March 2021.

The ATO published the first RTP Schedule disclosure findings report on 28 January, providing data on 2020 income year disclosures. This publication will be updated on an annual basis.

Members noted:

• adding questions during the year places an unnecessary burden on taxpayers
• taxpayer alerts are broad, so taxpayers need to consider this, and the compliance costs increase each year.

The ATO recognises the need to give early visibility for the questions. The ATO will consider ways to increase visibility earlier, for example including draft RTP questions when consulting on the Draft Practical Compliance Guides.

Repayment of JobKeeper

The ATO provided an overview of the approach to repayments of JobKeeper and the process behind the payments. The legal nature of the repayment is that it is a voluntary gift to the Commonwealth, as distinct from an actual repayment of the relevant JobKeeper amount.

The repayment must be processed through the ATO’s Heads of Revenue account and cannot be posted to any account of the client. The repayment does not have any retroactive effect on the client’s participation in the JobKeeper scheme – the client remains eligible for the JobKeeper scheme.

The client must still include all JobKeeper payments received, including any amount repaid, in their assessable income for the relevant income year. Whether the client is entitled to an income tax deduction for the repayment will depend on the particular facts and circumstances. The ATO adopts a practical compliance approach in accordance with our published guidance on ato.gov.au

The client should be sure of their decision before making the repayment, as the amount cannot be returned from consolidated revenue if the client subsequently changes their mind.

The ATO has published the public guidance process to facilitate the voluntary repayments.

Imported hybrid mismatch

The ATO provided an update on the Practical Compliance Guide (PCG) regarding hybrid mismatch rules that was published on 21 April 2021. The recommended approach to undertaking enquiries involves the taxpayer making and documenting formal requests for information and the responses. It is expected taxpayers will make these requests to the responsible individuals or suitably qualified representatives responsible for the relevant Division 832 control group.

Members noted concerns that the PCG does not go far enough to provide practical certainty for taxpayers. They raised the example of the approach adopted by New Zealand as a preferred alternative.

The ATO welcomes feedback from members and practical real-life examples. We noted that the PCG endeavours to assist taxpayers to consider the level of evidence required in order to comply with the law.

Research and development tax incentive

The ATO provided an update on the changes announced in the October Budget, including the requirement for the ATO to publish research and development (R&D) data ‘as soon as practicable’ – which is two years after the end of the financial year.

The next National Roundtable is scheduled for 22 April 2021. Insights from COVID-19 and adaptation of the R&D program remaining fit for purpose will be of focus.

The Software Industry Collaborative Workshop is scheduled for 28 April 2021, to improve understanding between the co-administrators and software industry on the eligibility of R&D software and appropriation of expenditure claims.

Changes to the R&D tax incentive were announced in the October Budget with a date of effect of the new legislation being 1 July 2021. Five key changes introduced in the new legislation include:

• replacing the current 43.5% refundable offset with an offset of 18.5% above the company tax rate; and replacing the current 38.5% non-refundable offset with a 2-tier intensity premium
  • up to 2% – an offset of 8.5% above the applicable company tax rate
  • above 2% – an offset of 16.5% above the applicable company tax rate.
   
• increasing the expenditure threshold from $100m to $150m
• amending Part IVA to include a tax offset as a tax benefit
• amendments to the feedstock and clawback provisions
• publishing individual company’s claimed R&D expenditure.

As the legislation only applies from 1 July 2021, the ATO has not updated all web guidance. This is to ensure there is no confusion when lodging returns for the 2020–21 income tax year under the old legislation. Essentially, claimants do not have to do anything in the current income year ending 30 June 2021.

The ATO is to look into the wording in the data table that is included in the annual report as there is potential confusion in relation to the reference to ‘paid’.

Temporary full expensing measure

The ATO provided responses to questions raised in the Corporate Tax Association letter which was provided to members and members discussed the responses further. The next guidance will be focusing on compliance risk and issues. A legal companion ruling will be published in June and will be open to consultation.

Private rulings may be appropriate in certain circumstances, especially as they relate to individual contracts, for example.

ATO encourages members facing difficulties in understanding the process to come forward with examples to work through to provide the guidance required.

Independent review (IR)

The ATO provided an overview of findings from the review of the Large Market Independent Review process. Members received confirmation that the document provided can be shared.

Members raised concerns that the IR is a shortened objection process having the same officer on both. ATO confirmed the taxpayer maintains their rights to object on the case and to provide further information as part of the objection.

Guidance will be discussed internally for circumstances not offering an independent review. The ATO is to consider including an explanation of the Independent Review process at time of Statement of Audit Position.

Treasury update

Treasury confirmed the Budget is scheduled for 11 May, where the Treasurer will announce plans for future. These matters cannot be discussed until then.

Members questioned Treasury’s involvement with petroleum resource rent tax. An email is to be sent to the correct area in Treasury to address this.

Treasury advised the intent to consult on the draft corporate residency and fringe benefits tax.

Online Services for Business program

Online services for business will provide a secure, modern channel for businesses and sole traders to manage their tax and super obligations. It can be accessed on multiple devices, including a smart device like your phone or tablet.

Online services for business will replace the current Business Portal and the Electronic Superannuation Audit Tool (eSAT). The new platform went live on 9 April 2021 and has the ability to review previous tax returns and correspondence, as well as switch between different entities.

ATO encourages members to use the platform and provide feedback to further improve the system.

Other

Members questioned policies on payments of refunds: The ATO advised members that no overarching policy or system changes have been made that would impact large business refunds. If taxpayers have any questions about their refund, it is recommended they contact their Top 100/1,000 contacts.

Attendees

Apologies