National Tax Liaison Group key messages 28 April 2022

Key highlights

Modernising Business Registers Program: Director ID is now live with the ATO focussed on education and awareness. The next major roll out is scheduled for late next year. It will provide entities with a more streamlined way to register, view and maintain company details using Australian Business Registry Services (ABRS) online.
Members have been invited to respond to questions on the proposed measures and indicators that the ATO is considering for assessing the effectiveness of a public advice and guidance (PAG) product.
Members provided their thoughts on opportunities to strengthen the ATO’s consultation approaches.
The ATO’s work on updating guidance for digital assets and transactions is progressing. Members emphasised the breadth and depth of the issues involved. Members will provide their feedback and suggestions on how to approach education and awareness relating to this growing area.
Treasury provided a summary of the recent Federal Budget Measures and latest developments in the work on OECD Pillar 1 and Pillar 2.
Members provided their thoughts on the practical issues associated with recent litigation outcomes.

Opening comments

Kirsten Fish, Second Commissioner, Law Design and Practice Group, ATO; and Peter Godber, The Tax Institute

The National Tax Liaison Group (NTLG) Co-chair Kirsten Fish welcomed members and advised that Martin Pook from the Public Advice and Guidance Centre is replacing Jessica Chiu of the Office of the Chief Tax Counsel in supporting the NTLG. Kirsten Fish thanked Jessica Chiu for her contribution. Kirsten Fish noted that the ATO is currently under caretaker conventions which means that the business of government and ordinary matters of administration continue, however the ATO will not make or implement major changes.

NTLG Co-chair Peter Godber noted that the topics on today’s agenda are of key interest to members.

Modernising Business Registers Program

Elinor Kasapidis, CPA Australia; Michelle Crosby, Deputy Commissioner, Australian Business Registry Services, ATO; and Martin Jacobs, Assistant Commissioner, Australian Business Registry Services, ATO

Members noted the recent podcast recorded on the Modernising Business Registers Program covering director identification number (director ID) requirements for new directors, the future model for agents and the companies release involving both the ATO and CPA Australia.

The ATO provided an update on progress of the director ID initiative implementation, including details on the proposed compliance approach and the next major release.

The director ID service is now live, following a successful private beta phase. It is the first service delivered by the ABRS. The ABRS is undertaking awareness and engagement with intermediaries and key industry groups with broader communication activities to extensively promote director ID across a range of channels. The focus is on supporting directors to meet their new obligation. The ATO confirmed that existing directors have until 30 November to obtain a director ID, whilst new directors have 28 days to register. New directors appointed from 5 April 2022 need to have a director ID prior to appointment.

The next milestone for ABRS is to provide a more streamlined way to register, view and maintain company details using ABRS online. This milestone is known as the Companies release and is scheduled for late 2023. The companies release will bring together 4 Australian Securities and Investments Commission (ASIC) registers and associated company ABN details from the Australian Business Register.

The ASIC’s agent model is currently being examined, and the ATO is working with the Tax Practitioner’s Board to consider adopting or mirroring certain standards for ASIC agents.

There are 4 offences under the Corporations Act in relation to director ID. These include failure to have a director ID, failure to apply for a director ID when directed, applying for multiple director IDs and misrepresenting a director ID. ASIC retains the enforcement action for these offences. It is expected that most cases will relate to ‘failing to apply for a director ID when directed’. The ATO is commencing identification of matters that should be referred to ASIC.

Members noted that the use of paper forms for overseas directors is problematic and asked whether the ATO had considered the approach used in New Zealand. The ATO advised that regular collaboration occurs between Australia and New Zealand, but we are constrained by identification and verification requirements for myGovID.

Measuring the effectiveness of PAG

Fiona Dillon, Chief Tax Counsel, Office of the Chief Tax Counsel, ATO

The ATO is developing measures to gauge the effectiveness of the PAG it produces. The ATO continues to explore methods of evaluating the qualitative and quantitative impacts of PAG. The proposed measures include indicators for each measure. We have identified that we need to consider the impact on:

ease of compliance
change in behaviour
administrative efficiency
revenue.

The ATO welcomed members feedback on the proposed measures and indicators as well as any information or data the member representative bodies could provide.

Members noted that it can be difficult for professional bodies to bring together a representative view on whether a product was effective. Members commented that the ATO may need to consider other issues to evaluate PAG, such as quality and timeliness. The effectiveness of PAG is related to the outcome of a sequence, of which all parts need to be effective.

The ATO noted that it can be hard to measure effectiveness when the product is part of a wider compliance approach and we need to be clear about the intent of a product. No single measure can be relied upon in isolation. Indicators will likely be different for different products because the products have a different purpose. For instance, a taxpayer alert is focused on a rapid change of behaviour involving an expected revenue impact, while a practical compliance guideline guides a taxpayer on what we consider to be low-risk behaviour.

In addition to the questions posed in the paper, the ATO invited input from members on the following:

Do the categories cover the potential impacts you expect?
Do the indicators align with your expectations?
Are there other indicators or benefits you might expect?
Are there additional categories or indicators the ATO should be using?
What should be considered upfront?
Are there additional or consequential considerations for planning PAG?
What sources of information are representative bodies using to identify problems that need to be addressed by PAG and where PAG has been issued whether the need has been met on release of that PAG?

Action item	NTLG 2204/1
Due date	15 June 2022
Responsibility	Julie Abdalla
Description	Measuring the effectiveness of Public advice and guidance In addition to the questions posed in the paper, members are to provide a response to the following questions: Do the categories cover the potential impacts you expect? Do the indicators align with your expectations? Are there other indicators or benefits you might expect? Are there additional categories or indicators the ATO should be using? What should be considered upfront? Are there additional or consequential considerations for planning PAG? What sources of information are representative bodies using to identify problems that need to be addressed by PAG and where PAG has been issued whether the need has been met on release of that PAG?

Consultation processes

Fiona Dillon, Chief Tax Counsel, Office of the Chief Tax Counsel, ATO; Kate Wilson, Assistant Commissioner, Enterprise Strategy and Design, ATO; Peter Godber, The Tax Institute; and Alexis Kokkinos, CPA Australia

The ATO confirmed its commitment to the improvement of ATO consultation processes. Members were asked to identify practical ideas for any changes that may be necessary to help us revamp or refresh our approach.

Members noted that:

the objective of consultation must be clear, for example, are we seeking input on the tax technical aspects and/or the practical implications
there should be a consultation plan that sets out milestones, so participants know the next steps and expectations
where parties have been involved in targeted consultation during the development of a draft product they should be provided with the draft before it is released publicly
consultation should occur throughout the development of a view, not after a view has been formed – the ATO noted there may be space for both, for example, releasing a document in draft form for comment is often appropriate though it is consulting after a draft view has been formed
consultation should explore market knowledge and the practical implications of the developing ATO view
consultation principles are necessary to guide and set the tone of consultations
it is critical that the right mix of people is involved, and we need to be clear on why stakeholders have been selected and their role
the ATO consultation lead must show good leadership, have good communication skills, be able to articulate the ‘sticky’ points and create the right, open environment to discuss the issues
it is important to think about the right sequencing of interactions and mix of activities
we should consider whether public or confidential consultation is appropriate – if confidential consultation is adopted, it should be understood why, what it means, and be re-visited throughout the process to determine when it should become public
workshops are useful to sort out practical issues and they facilitate open conversations rather than relying on paper-based interactions
providing feedback on external submissions is essential – if the published draft view will substantially differ from the view that has been discussed during targeted consultation, the ATO should update those consultation participants
there should be an escalation process for situations that are not progressing appropriately
approaches to consultation should vary depending on the issue – for emerging topics (for example, cryptocurrency), consultation should focus on practical implications and exploring market impacts of a particular view; for long-standing technical topics on which the ATO has been silent for some time, a different process may be needed
consultation is more effective when it is face-to-face
different types of consultation, and different participants may be necessary through the process, for example, include lawyers whilst forming a view, and include practitioners to test the practical impact of the view and communication strategy
ATO officers should communicate the fixed or sticky points early including those that are non-negotiable
techniques or training for consultation leads may be appropriate to ensure the right information is obtained
the ATO should provide participants with feedback on their behaviour and performance in consultation
the ATO should, through feedback on the ATO position adopted and in response to the submissions or positions of the participants, put participants in a position where they can explain the ATO position.

The ATO acknowledged consultation participants would benefit from setting boundaries and expectations prior to consultation, and regular assessment of those settings. The ATO invited members to continue to provide feedback to improve the ATO’s approach to consultation.

Digital assets and transactions

Fiona Dillon, Chief Tax Counsel, Office of the Chief Tax Counsel, ATO; Len Hertzman Assistant Commissioner, Office of the Chief Tax Counsel, ATO; Elinor Kasapidis, CPA Australia; and Jerome Tse, The Tax Institute

The ATO noted that the rapid adoption of digital assets and transactions creates several challenges for tax administration, due to their unique and dynamic nature. The ATO is expanding its current suite of PAG to address issues identified in last year’s Senate Committee Report on Australia as a Financial and Technology CentreExternal Link as well as matters which arise in client engagement activities and private ruling requests. We expect several tranches of updated guidance will be provided by the middle of this calendar year.

Members were invited to provide their input on what guidance or approaches may be necessary. Members noted:

the importance of clearly defining a digital asset
the need to explore legal and accounting concepts prior to considering tax implications
a demand for guidance from their members
the need to focus at the consumer and the wholesale end
a workshop would be valuable to all parties to understand the issues, identify education requirements and what else may need to be done.

The Board of Taxation is undertaking a review into the appropriate policy framework for the taxation of digital assets and transactions. The ATO noted it is working with the Board of Taxation and Treasury on the background to prepare for consultation. The ATO recognised the importance of having a coordinated approach.

Members further advised that whilst they are receiving questions from a variety of sources, they are not looking to resolve digital transaction issues until the government makes some decisions in relation to the treatment of these assets.

Members suggested that:

a discussion with non-tax experts would assist the education process
the ATO engage with digital service providers and the Technology Council of Australia
PAG should be tailored to social media and distributed through contemporary social media platforms.

Members confirmed they will provide suggestions on topics, issues and consultation participants.

Action item	NTLG 2204/2
Due date	15 June 2022
Responsibility	Julie Abdalla
Description	Digital assets and transactions Members to provide suggestions on topics, issues and consultation participants.

Treasury update

Nicholas Dowie, Assistant Secretary, Revenue Group, Treasury

Treasury noted key measures from the recent Federal Budget:

Reduction of 50% in the excise and excise-equivalent customs duty rate that applies to petrol and diesel for 6 months
Expansion of patent box concessional tax treatment to agricultural sector and low emissions technology
Extension of the Tax Avoidance Taskforce for a further 2 years
Tax deductibility of costs of taking a COVID-19 test to attend a place of work from 1 July 2021 and exemption from fringe benefits tax where COVID-19 tests are provided to employees
Deductibility of an additional 20% of expenditure incurred by small businesses on external training courses provided to their employees and costs incurred on assets that support their digital adoption
Lower uplift rate for pay as you go instalments
Primary Producers – Increasing concessional tax treatment for carbon abatement and biodiversity stewardship income.

Members questioned if the services the profession provide would be eligible for the increased small business deductions.

Members also asked whether the ATO expects the profession to test the veracity of an individual’s claim for the purchase of rapid antigen tests required for work purposes. The ATO confirmed web guidance is available, but that people need to be reasonable with their claims.

Treasury provided an update on OECD Pillar 1 and Pillar 2

Pillar 1 – We are still working through the approach to implement the multilateral convention. Several papers have been released so far on the draft rules for the different elements with several aspects still unresolved. The timeline for implementation is ambitious.

Pillar 2 – Work has commenced on an implementation framework noting that the achievement of the proposed timeline will be difficult with some countries already announcing delays to the commencement date.

Members agreed that the timeframes for feedback into the OECD’s work is difficult to achieve, and that the speed of OECD consultation made it problematic for professional bodies to engage. The accounting profession has not been able to provide meaningful submissions on accounting issues.

Review of new legislation guidance products

Alex Affleck, Deputy Chief Tax Counsel, Office of the Chief Tax Counsel, ATO; Lisa Clifton, Assistant Commissioner, Office of the Chief Tax Counsel, ATO; and Nicholas Dowie, Assistant Secretary, Revenue Group, Treasury

Members were provided with a paper that summarised the discussions at the workshops held last year. Work has not progressed due to other priorities. The ATO is looking to deliver a paper that outlines best practice interactions between the ATO, Treasury and external parties on the development of new law guidance.

Litigation case outcomes

Decision impact statement Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd

Tony Greco, Institute of Public Accountants; Alex Affleck, Deputy Chief Tax Counsel, Office of the Chief Tax Counsel, ATO; and Jenny Lin, Assistant Commissioner, Superannuation and Employer Obligations, ATO

The ATO has issued a decision impact statement (DIS) which is open for comment until 6 May 2022. Whilst the ATO was not a party to this matter, the common law test of employment is a key determinant in several taxation laws and the decision will result in the need to update several of the ATO’s publications and electronic tools.

The decision by the High Court did not disturb the well-established practice of examining the totality of the relationship. The relationship is to be examined by looking at the terms and conditions of the written contract where it is an accurate, comprehensive, and accepted record of the agreement struck between the parties. The multifactorial test, where the indicia of employment are routinely tested against both the written contract and how that contract was performed over time is both unnecessary and inappropriate.

However, the way in which the contract is performed does become relevant where:

the contract is an oral contract or is partly written and partly oral, to determine when the contract was formed and the contractual terms that were agreed
the terms of the written contract have been varied
the terms of the written contract are being challenged as invalid
a party to the contract asserts rectification, estoppel or any other legal, equitable or statutory rights or remedies.

ATO’s PAG has always emphasised looking at the totality of the relationship, which is consistent with the decision. The DIS notes several publications that will be updated to reflect the decision with these being annotated to reflect that they are under review.

Members noted that the profession will need to have a better understanding of contract law to understand whether superannuation needs to be paid. Members noted the importance of raising awareness with the audience seeking guidance from related ATO products.

Decision impact statement Addy v Commissioner of Taxation

David Watkins, CA ANZ; Lloyd Williams, Client Engagement Director, Individuals and Intermediaries, ATO; Simon Weiss, Law Interpretation Specialist, Office of the Chief Tax Counsel, ATO; and Danielle Ellershaw, Assistant Commissioner, Office of the Chief Tax Counsel, ATO

The ATO considered that a response to the decision in the court case was a priority. A decision impact statement (DIS) would not normally extend beyond the facts of the decision. However, in this case the ATO decided to extend the DIS to a very specific factual situation that had been raised.

Members noted that:

stating an ATO position in a DIS on facts not in the case would generally mean the community would not be aware of it or able to find it
they felt the position on the extended facts had been determined before the consultation process, and although the ATO held several discussions and received submissions, members could not understand how the ATO reached the view expressed in the DIS
the decision provides an opportunity to discuss treaty interaction issues – the ATO stated the scale of impact of these interactions, that is, number of taxpayers, amount of tax and their practical implications would need to be clearer before resources would be invested in developing PAG.

The ATO noted its current understanding that there would not be significant numbers of persons who would be impacted by the extended fact situation and therefore a separate ruling would not be appropriate.

Peter Greensill Family Co v FC of T; N&M Martin Holdings v FC of T

Peter Godber, The Tax Institute; Justin Dearness, Assistant Commissioner, Office of the Chief Tax Counsel, ATO; and Chris Ryan, Assistant Commissioner, Private Wealth, ATO

The decision confirms the Commissioner of Taxation's long held view that non-resident beneficiaries of discretionary trusts can be assessable on capital gains made by those trusts on assets which are not taxable Australian property (see Draft Taxation Determination TD 2019/D6 Income tax: does Subdivision 855-A (or subsection 768-915(1)) of the Income Tax Assessment Act 1997 disregard a capital gain that a foreign resident (or temporary resident) beneficiary of a resident non-fixed trust makes because of subsection 115-215(3)?). The decision also tested the views in Draft Taxation Determination TD 2019/D7 Income tax: is the source concept in Division 6 of Part III of the Income Tax Assessment Act 1936 relevant in determining whether a non-resident beneficiary of a resident trust (or trustee for them) is assessed on an amount of trust capital gain arising under Subdivision 115-C of the Income Tax Assessment Act 1997? and Taxation Determination TD 2017/23 Income tax: does the residency assumption in subsection 95(1) of the Income Tax Assessment Act 1936 (ITAA 1936) apply for the purpose of section 855-10 of the Income Tax Assessment Act 1997 (ITAA 1997), which disregards certain capital gains of a trust which is a foreign trust for CGT purposes? With the litigation now concluded, TD 2019/D6 and TD 2019/D7 are progressing to finalisation.

Since the release of TD 2019/D6, the ATO has observed higher compliance levels with respect to correct reporting of these trust capital gains by trustees and beneficiaries. The ATO continues to monitor data and profile taxpayers to ensure compliance.

Members noted that it is still a very confusing area of the law.

The ATO is exploring the use of appropriate channels, such as industry circulars to support taxpayers and advisers in understanding the practical operation of the law for trust capital gains. Members asked that they be provided an opportunity to review communication prior to public release.

Action item update

Members were provided a written update on the outstanding action items with members noting that for Action item – NTLG 1911/1 – Establishment of NTLG sub-group to consider compliance costs, they are planning to meet with Professors Chris Evans and Binh Tran-Nam to obtain an understanding of the research undertaken. Members will report directly back to Assistant Commissioners Andrew Watson and Karen Foat.

Other business

Members noted 2 matters:

Law Companion Ruling LCR 2021/2 Non-arms’ length income – expenditure incurred under a non-arm’s length arrangement – Representations have been made that a strict interpretation of the law is problematic for self-managed super funds. Members suggested that there should be an extension of the original moratorium period beyond 30 June 2022. Members also noted their preference for the ATO to provide the government time to understand issues prior to actively applying the law. The ATO noted its concerns if the administrative extension of time for commencement is extended.

Members acknowledged that a legislative change may be the best approach however they felt this would not be an immediate or urgent priority for government post-election. If no legislative change occurs, members asked whether the ATO would be providing further guidance on the discount policies / what is acceptable for paragraph 51 purposes.

Commissioner of Taxation v Carter [2022] HCA 10 has provided guidance on 'disclaimers' but will create a significant risk for the ATO and some taxpayers to administer. Members identified the urgency of the matter, requesting the ATO work with Treasury on the issue as a priority.

Attendees

Attendees list
Organisation	Attendees
ATO	Kirsten Fish (Co-chair), Law Design and Practice
ATO	Jeremy Hirschhorn, Client Engagement
ATO	Jessica Chiu, Office of the Chief Tax Counsel
ÁTO	Martin Pook, Office of the Chief Tax Counsel
ATO	Robyn Theacos (Secretariat), Enterprise Strategy and Design
Chartered Accountants Australia and New Zealand	David Watkins
Chartered Accountants Australia and New Zealand	Michael Croker
CPA Australia	Alexis Kokkinos
CPA Australia	Elinor Kasapidis
Institute of Public Accountants	Tony Greco
Law Council of Australia	Angela Lee
Law Council of Australia	Justin Byrne
The Tax Institute	Jerome Tse
The Tax Institute	Peter Godber (Co-chair)
The Tax Institute Professional Bodies Coordinator	Julie Abdalla
Treasury	Maryanne Mrakovcic
Treasury	Nicholas Dowie

Apologies

Apologies list
Organisation	Member
Corporate Tax Association	Michelle de Niese
Treasury	Marty Robinson