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Senate

Indirect Tax Legislation Amendment Bill 2000

Supplementary Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

General outline and financial impact

Reverse charge and expatriate salaries

The A New Tax System (Goods and Services Tax) Act 1999 (GST Act) is amended to remove the GST reverse charge from amounts paid to an overseas entity or branch by its Australian branch for the services of an expatriate employee. The reverse charge is removed from the payment to the extent that the amount would have been subject to pay as you go (PAYG) withholding if it had been paid to a worker in Australia by an Australian employer.

Date of effect: 1 July 2000.

Proposal announced: Not announced.

Financial impact: Negligible.

Compliance cost impact: The request for amendment will reduce compliance costs for foreign owned financial supply providers.

Fringe benefits tax interaction

The requests for amendments make technical corrections to the provisions in the Indirect Tax Legislation Amendment Bill 2000 relating to the interaction of fringe benefits tax (FBT) and GST. The current provisions are too broad and should not operate to deny a financial supply provider an input tax credit on an acquisition where no FBT would be payable. The amendment will ensure that financial supply providers are not denied an input tax credit on an acquisition or importation where no FBT is payable and only on those acquisitions that are provided as fringe benefits.

Date of effect: 1 July 2000.

Proposal announced: Not announced.

Financial impact: Nil.

Compliance cost impact: The amendments will reduce compliance costs.

Chapter 1 - Reverse charge and expatriate salaries

Outline of Chapter

1.1 This Chapter explains an amendment to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) relating to the reverse charge that applies on transfers between an overseas entity or branch and an Australian branch of the same entity.

1.2 The GST Act is amended to remove the GST reverse charge from amounts paid to an overseas entity or branch by its Australian branch for the services of an expatriate employee.

Detailed explanation of new law

1.3 Imported services used to make input taxed financial supplies are subject to a GST reverse charge under Division 84 of the GST Act. That is, the Australian recipient of the supply, rather than the overseas supplier, is liable for the GST on the imported service. Where a financial supply provider imports a service that would be subject to GST if purchased in Australia, the recipient is required to remit GST on the price of the supply. The reverse charge removes the incentive for a financial supply provider to import services GST-free rather than sourcing GST-inclusive services domestically.

1.4 Section 84-15 also provides that transfers between branches of the same entity are a supply that is not connected with Australia. Therefore, provided the other requirements of section 84-5 are satisfied, these transfers are a taxable supply and subject to the reverse charge.

1.5 One of the imported services to which a reverse charge applies is employee services provided by an overseas entity or branch to its Australian branch. This would occur where an overseas employee is transferred to Australia. For a variety of reasons, the overseas entity or branch may continue to pay the employee's salary and would then charge a fee to the Australian branch for these services. The Australian branch would be subject to a reverse charge for these services as they are imported services.

1.6 However, a reverse charge in these circumstances places foreign owned financial supply providers at a competitive disadvantage compared to domestic providers. This is because salaries paid by domestic providers to their employees are not subject to GST while equivalent payments such as the fees charged by overseas entities or branches to its Australian branches, are taxable.

1.7 Request for amendment 5 removes this disadvantage for foreign owned financial supply providers. The amendment will apply where an entity carries on an enterprise in Australia and also carries on that or another enterprise outside Australia. The GST Act is amended to remove the GST reverse charge from amounts paid to an overseas entity or branch by its Australian branch for the services of an expatriate employee. The reverse charge is removed from the payment to the extent that the amount would have been subject to pay as you go (PAYG) withholding if it had been paid to a worker in Australia by an Australian employer.

1.8 This amendment will eliminate the reverse charge from the salary or wage component that is recouped by the overseas entity or branch from its Australian branch. However, any other fees for services charged by the overseas entity or branch to its Australian branch will remain subject to the reverse charge.

Example 1.1 WRG Bank is based in Hong Kong and has a branch in Australia. Jimmy Yip is an employee of WRG Bank Hong Kong and is sent to work in the Australian branch for 2 years. Jimmy is paid directly by WRG Bank Hong Kong. WRG Bank Hong Kong recoups Jimmy's salary expenses from the Australian branch and also charges an administrative fee.If Jimmy had been paid for his work in Australia directly by the Australian branch, Jimmy's salary would be assessable income in Australia and subject to PAYG withholding. The payment from the Australian branch to WRG Bank Hong Kong to reimburse Jimmy's salary is not subject to the reverse charge in Division 84. However, the administrative fee paid by the Australian branch is not a payment of salary or wages and remains subject to the reverse charge in Division 84.

Chapter 2 - Fringe benefits tax interaction

Outline of Chapter

2.1 Requests for amendments 1 and 2 make a technical correction to the provisions in the Indirect Tax Legislation Amendment Bill 2000 (the Bill) relating to the interaction of fringe benefits tax (FBT) and GST. The provisions, as drafted, are too broad and should not operate to deny a financial supply provider an input tax credit on an acquisition or importation where no FBT would be payable.

Detailed explanation of new law

2.2 In certain circumstances financial service providers will be entitled to only a small proportion of the input tax credit for an acquisition or importation that is provided as a fringe benefit, but are subject to the higher FBT gross up rate. Item 5A of the Bill inserts new Division 71 into the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) to overcome this problem by denying input tax credits on acquisitions or importations that are made for the purpose of providing fringe benefits to an employee of a financial supply provider that is wholly or partly denied the input tax credit. Where no input tax credit is available, the lower FBT gross up rate applies.

2.3 However, the current provisions are too broad and apply to deny an input tax credit to the financial supply provider in some situations where no FBT is payable, such as where the benefit is exempt or has no taxable value.

2.4 Requests for amendments 1 and 2 amend new sections 71-5 and 71-10 to ensure that financial supply providers are only denied an input tax credit where:

·
FBT is payable on the provision of the benefit; and
·
the acquisition or importation would have been a GST-creditable benefit if this section did not operate to deny input tax credits on the acquisition and importation.

2.5 The first requirement ensures that where no FBT is payable on the provision of the benefit, the financial supply provider will not be denied input tax credits. For example, where the benefit is an exempt benefit or has no taxable value. Request for amendment 3 inserts a definition of 'fringe benefits tax' into section 195-1 of the GST Act.

2.6 The second requirement ensures that financial supply providers are denied input tax credits only on GST-creditable benefits. This ensures that the denial of input tax credits only applies to acquisitions or importations of things that are themselves provided as fringe benefits. Financial supply providers are not denied an input tax credit for acquisitions or importations that are incidental or indirectly relate to the fringe benefit. GST-creditable benefit has the meaning given by section 149A of the Fringe Benefits Tax Assessment Act 1986. [Request for amendment 4]

2.7 Generally, a GST-creditable benefit is a benefit provided in respect of the employment of an employee where the person who provided the benefit (or another member of the same GST group) was entitled to an input tax credit:

·
for the acquisition or importation of the benefit; or
·
for that benefit by the operation of Division 111 of the GST Act.


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