Explanatory Memorandum(Circulated by authority of the Treasurer, the Hon. Frank Crean, M.P.)
The first Bill proposes amendments to the Income Tax Assessment Act (the "Principal Act") in relation to the matters outlined below, while the second Bill is of a purely drafting kind in consequence of the first of the matters outlined below.
To give effect to a decision announced by the Treasurer on 2 July 1973 to eliminate an unintended effect of provisions for imposition of withholding tax of 10 per cent on interest paid to non-residents, two principal amendments are proposed. The amendments relate to the view that, as the law stands, withholding tax is technically not payable in circumstances where interest, which would be subject to tax if paid directly to the non-resident lender, is paid to a resident of Australia carrying on business through an overseas branch and the branch in turn pays interest to the non-resident lender. The two principal amendments are -
- To counter this means of avoidance of the tax, while retaining the basic tests for liability to it, interest derived from Australia by a resident of Australia in the course of carrying on a business through an overseas branch ("permanent establishment") will be subject to withholding tax in circumstances in which it would have been subject to the tax if it had been derived by a non-resident.
- Further amendments of a technical kind are designed to make clear that there is a basic liability to the withholding tax on non-residents in cases where the first amendment is not applicable to interest paid from Australia through an overseas branch of an Australian resident.
As provisions of the Principal Act dealing with the source of royalty income paid to non-residents, and the source (for purposes of legislation relating to Norfolk Island) of interest and royalty income generally, are modelled on the interest withholding tax provisions which are being amended by the Bill, technical amendments concerning these matters - of the same kind as referred to in sub-paragraph (b) above - are also proposed.
Following the acceptance of recommendations of the Committee of Inquiry into Financial Terms and Conditions for Male and Female Members of the Regular Armed Forces (the "Woodward Committee"), the pay structure of the Defence Force has been changed. The new structure was framed on the broad basis that allowances should be taxable with the exception of those that reimburse servicemen for out-of-pocket expenses. The Bill contains provisions to bring the Principal Act, insofar as it relates to the taxation of Defence Force allowances, into harmony with the current pay structure and, in particular, to enable allowances to be treated for income tax purposes in the ways envisaged by the Woodward Committee.
To give effect to a decision of the Government announced in February 1973, provision is also being made in the Bill for the exemption from income tax of the $1,000 bounties payable to Defence Force personnel whose service is to continue for at least three years after the completion of a qualifying period of service.
Subject to a maximum limit of $1,200, deductions are allowable for life insurance premiums and contributions to a superannuation fund. Following recent changes to the Defence Force and Parliamentary Retirement Benefits Schemes, members' contributions under those schemes are paid directly into consolidated revenue. The Bill provides for these contributions to be deductible on the same basis as contributions paid to a superannuation fund.
More detailed notes on each clause of the Bills are set out below.
NOTES ON CLAUSES
This clause formally provides for the short title and citation of the Amending Act and the Principal Act, as amended.
Section 5(1A) of the Acts Interpretation Act 1901-1973 provides that unless the contrary intention appears every Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent.
This clause provides that the Bill will come into operation on the day on which it receives the Royal Assent, thus facilitating the early application of provisions of the Bill from dates set out in its various clauses.
This clause proposes technical amendments to section 6C of the Principal Act which are designed to forestall possible avoidance of tax on royalties derived by non-residents. The proposals follow similar lines, and are based on similar considerations, to those in the Bill that relate to interest withholding tax. Details of the latter proposals are contained in the notes on clause 9 of this Bill, to which reference should be made. Clause 9 will amend section 128B of the Principal Act.
Sub-clause (1) of clause 3 proposes to add new sub-sections (5), (6) and (7) to section 6C of the Principal Act. Section 6C is intended to ascribe an Australian source to royalties paid to non-residents where, in broad terms, a payment is made by an Australian resident which is not an expense of a foreign business of the resident or a payment is made by a non-resident which is an expense of an Australian business. For reasons outlined in the notes on clause 9, which is concerned with a corresponding problem in relation to interest withholding tax, there is doubt whether section 6C, as now expressed, would technically give effect to this intention in some situations. New sub-section (6) (which corresponds with proposed sub-section (8) of section 128B) deals with royalty payments by Australian residents while proposed sub-section (7) (corresponding with new sub-section (9) of section 128B) deals with payments by non-residents. Proposed sub-section (5) is a drafting measure providing for an Australian resident to be referred to in sub-sections (6) and (7) as a "relevant person".
Sub-clause (2) of the clause proposes that the amendments to section 6C, which have not previously been announced, will commence to apply on the day after the introduction of the Bill.
Section 23 of the Principal Act specifies classes of income that are exempt from tax. Dependants' and exchange allowances paid to a member of the Defence Force are at present exempted under sub-paragraph (i) of paragraph (t) of the section. By clause 4 it is proposed to omit the reference to these allowances and to provide instead for the exemption of an allowance or bounty that is prescribed by regulation. An exemption is also proposed in respect of the value of rations and quarters provided free of charge to a member of the Defence Force.
Paragraph (a) of clause 4, by omitting sub-paragraph (i) of paragraph (t) of section 23, will have the effect of withdrawing existing exemptions for dependants' allowances and exchange allowances. By virtue of clause 12 this amendment will apply to assessments for 1972-73 and subsequent income years in the case of dependants' allowances and to assessments for 1973-74 and subsequent income years in the case of exchange allowances.
The exemption for dependants' allowances will not, however, be affected as regards allowances within its scope (marriage allowances, separation allowances and child education allowances) paid in respect of service prior to the date of commencement of the new Defence Force pay code, i.e., the code based on recommendations of the Woodward Committee. This date is 8 February 1973 for the Air Force and 9 February 1973 for the Army and the Navy.
After these dates the exemption for dependants' allowances under sub-paragraph (i) of paragraph (t) of section 23 would have applied only to child education allowances. Marriage allowances ceased to be payable and changes in the conditions for payment of separation allowances placed them outside the scope of the exemption. The exemption of child education allowances and separation allowances are, however, to be continued. They are among the allowances which it is proposed to prescribe by regulation under new sub-paragraph (iii) of section 23(t).
The exemption for exchange allowances was incorporated in the law in 1947 to provide freedom from tax on allowances that were then payable to Australians serving overseas as compensation for shortfalls in the purchasing power of pay drawn in foreign currencies. As these allowances have not been paid since 1965 the exemption has outlived its purpose.
Paragraph (b) of clause 4 will insert in paragraph (t) of section 23 of the Principal Act two additional sub-paragraphs authorising new income tax exemptions. A new sub-paragraph (iii) will operate to exempt any allowance or bounty that is prescribed in the income tax regulations and a new sub-paragraph (iv) will operate to exempt the value of rations and quarters in the limited range of circumstances in which they are supplied without charge, i.e., to married servicemen living in service accommodation while on duty away from their homes, to servicemen living on seagoing ships, and to servicemen on field exercises.
Under clause 12, these amendments apply to assessments for 1972-73 and subsequent years of income subject to the qualification, in relation to prescribed allowances and the value of free rations and quarters, that only allowances paid or rations and quarters supplied under the new pay code are covered.
It is proposed to prescribe, for the purposes of the new sub-paragraph (iii) of section 23(t), the re-engagement bounty of $1,000 now payable as an incentive for servicemen to undertake further service and those allowances which, being in the nature of reimbursements of out-of-pocket expenses, are of a kind which the Woodward Committee envisaged would be free of tax but which would not necessarily be protected from tax by the general operation of the income tax law.
The allowances involved are -
- child education allowances (payable to servicemen posted to a new location, generally to cover extra costs associated with the continued education of a child at the former location);
- separation allowances (payable to servicemen absent from their homes on duty for more than 14 days to cover extra expenses arising from the absence);
- living out allowances (payable to unmarried servicemen to cover reasonable extra costs of commercial accommodation used, in most cases, because service accommodation is not available);
- living-out-away-from-home allowances (payable to married servicemen on duty away from their homes to meet reasonable costs of commercial accommodation used because service accommodation, in which rations and quarters would be supplied free of charge, is not available); and
- retention of lodgings allowances (payable to servicemen required to pay for the reservation of commercial accommodation during short absences arising from duty requirements).
Like clause 3, clause 5 is a technical amendment occasioned by the need to amend the interest withholding tax provisions (as proposed in clause 9) to ensure that avoidance of tax does not result from the present expression of statutory rules governing the "source" of interest payments.
Clause 5 will amend section 24L of the Principal Act, which is one of a number of special provisions dealing with Norfolk Island, Cocos (Keeling) Islands and Christmas Island. The provisions were enacted in 1973 to prevent "tax haven" resort to those Territories, while retaining an exemption for local residents and their companies. Section 24L is one of the measures contained in these special provisions designed to prevent their exploitation. It sets out rules whereby, in effect, interest and royalties are to be taken for purposes of the special provisions as having a source in Australia.
These rules are modelled on those in section 6C (royalties paid to non-residents) and in section 128B (interest paid to non-residents). As it has been found necessary to amend these rules to ensure that they have their intended operation, corresponding amendments are proposed to section 24L. The technicalities of the basic amendments are explained in the notes on clause 9, which will amend section 128B.
Sub-clause (1) inserts new sub-sections (4A), (4B) and (4C) in section 24L. Sub-section (4A) is a drafting provision ("relevant person" to mean (broadly) an Australian resident), sub-section (4B) relates to payments by Australian residents and corresponds with proposed section 128B(8) while sub-section (4C) relates to payments by non-residents and corresponds with proposed section 128B(9).
Sub-clause (2) of clause 5 will make the amendments to section 24L applicable to payments made on and after the day following introduction of the Bill into Parliament.
Section 26 of the Principal Act specifies various kinds of receipts and benefits that are to be included in the assessable incomes of the recipients. Paragraph (ea) of that section provides that the assessable income of a member of the Defence Force includes the value of the allowances he receives. Defence Force allowances in what might be described as the "food and shelter" category are deemed, by a proviso to paragraph (ea), to have an aggregate value for income tax purposes of $2 per week.
Clause 6 will omit the proviso which was added to the original terms of paragraph (ea) in 1947 following the adoption of a recommendation by a committee that submitted a report upon which the post-war pay code that came into operation in that year was based.
The committee recommended that the value of free rations and quarters provided by the Services for members should be assessed for taxation purposes at a standard amount of one pound ($2) per week and that this figure should also be adopted as the value of living out allowances and provision allowances for members living outside service establishments, irrespective of the amounts actually paid. Living out allowances were paid to single members and provision allowances to married members.
Under the pay code now in operation, married members of the Defence Force do not receive provision allowances, single members do not receive living out allowances of the kind payable from 1947 until early in February 1973 and, as a general rule, members who are supplied with rations and quarters are required to pay for them. By reason of the pay code changes that have operated from early in February 1973, the proviso to paragraph (ea) of section 26 has generally ceased to serve the purposes for which it was enacted.
If the proviso were retained in the law, recipients of free rations and quarters would continue to enjoy freedom from tax on so much of the value of that benefit as exceeds $2 per week. As indicated in the notes on paragraph (b) of clause 4, it is intended that the total value of rations and quarters supplied without charge will be exempted from tax under an amendment to section 23(t) of the Principal Act. Other allowances that would be covered by the proviso to section 26(ea) if it were retained in the law (a new type of living out allowance, living-out-away-from-home allowances and retention of lodgings allowances) will also be wholly exempted from tax under the proposals explained in the notes on paragraph (b) of clause 4.
The amendment made by clause 6, like the amendments authorising the exemptions just mentioned, is to have effect from the date of commencement of the current Defence Force pay code.
Section 82H of the Principal Act authorises the allowance of concessional deductions, subject to a maximum limit of $1,200, for payments of various kinds, including payments to superannuation funds.
In past years, members of the Australian Parliament and members of the Defence Force have been entitled to deductions under the section for contributions made respectively to the Parliamentary Retiring Allowances Fund and the Defence Force Retirement Benefits Fund. Under new arrangements contributions are no longer paid to these funds but are paid into consolidated revenue.
Clause 7 of the Bill, in conjunction with clause 12, will ensure that contributors will not be deprived of the traditional taxation concessions simply because of the change in the destination of the contributions.
Paragraph (a) of clause 7 will insert in paragraph (b) of sub-section (1) of section 82H, a new sub-paragraph (ii) to cover members' contributions that are paid into consolidated revenue under the revised Parliamentary and Defence Force Retirement Benefits Schemes. By clause 12 of the Bill, the amendment applies so that no break occurs in the continuity of the contributors' entitlements to deductions.
Paragraph (b) of clause 7 will amend the definition of ''benefits" in sub-section (1H) of section 82H. The definition gives the word "benefits", as used in that section in relation to life insurance policies, a restricted meaning that does not include sickness or accident benefits or bonuses. The amendment will ensure that the restricted meaning of the word will continue to apply as at present only in relation to benefits payable under life insurance policies. The word "benefits" as used in the new sub-paragraph will be given its ordinary meaning.
The present heading of Division 11A refers to dividends and interest paid to non-residents. It is proposed to add the words 'and to certain other persons' to reflect the fact that under the proposed amendments, interest paid to residents could in some circumstances be covered by the Division.
This clause proposes amendments to section 128B of the Principal Act to remedy a technical deficiency that appears to exist in the section where interest is paid from Australia through an overseas branch of a business conducted by an Australian resident.
Broadly, the purpose of section 128B as a whole is to create a liability to a withholding tax of 10 per cent of interest flowing to non-residents where the borrowed funds are in a real sense used in Australia. Accordingly, section 128B specifies that there is a liability to interest withholding tax -
- under section 128B(2)(b)(i), on interest paid by an Australian resident that is not an outgoing wholly incurred in carrying on business outside Australia through a branch situated in an overseas country; and
- under section 128B(2)(b)(ii), on interest paid by a non-resident that is incurred in carrying on business through a branch in Australia.
Interest paid by a resident is the main taxable case, and section 128B(6) (which deals with interest that is partly incurred in carrying on an overseas business), when read with section 128B(2)(b)(i), means that the withholding tax falls on interest paid overseas by an Australian resident except to the extent that it is incurred in carrying on business through a foreign branch.
Where interest that is otherwise subject to withholding tax is paid on a loan used by a firm with a sufficient degree of Australian ownership and control, the interest may be exempt from the tax by reason of section 128G of the Principal Act. The view has been put that, as the law is now framed, if interest is paid from Australia in respect of a loan to a company that is not sufficiently Australian owned to attract this exemption, the interest may nevertheless be exempt from tax if it is paid from the Australian end user through another Australian resident that carries on business through a foreign branch. The arrangement designed to bring about this situation involves one loan from a non-resident lender to an Australian resident institution that carries on a foreign business and a further loan of the moneys by the institution to the end user in Australia. Interest on the latter loan, being interest paid by a resident to another resident, would not at present be subject to withholding tax, while the interest paid by the resident intermediary institution is claimed to be interest incurred by it in carrying on its foreign business. If paid directly by the resident end user of the funds to the non-resident lender the interest would, of course, be subject to withholding tax.
Two amendments are proposed in order to eliminate this avenue of avoidance of the tax. The principal of these will place a liability to withholding tax on interest derived from Australia by an Australian resident in carrying on business through a foreign branch in circumstances where the tax would have been payable if the interest had been paid directly to the non-resident lender. The other will clarify the circumstances in which interest can be said to be incurred in carrying on a foreign business.
More detailed explanations of the proposed amendments are provided below. New sub-section (2A) to be inserted in section 128B of the Principal Act is designed to carry out the first of the amendments, while proposed sub-sections (8) and (9) of section 128B will enact the second.
Paragraph (a) of sub-clause (1) of clause 9 is a drafting measure which inserts a new sub-section (1A) in section 128B. Its purpose is to save words and aid comprehension by defining the term 'person to whom the section applies' - a term used frequently throughout the section. The term embraces the Australian or a State Government, an authority of such a government and any person who is, or at least one of whom is, a resident of Australia. Withholding tax applies to interest paid to non-residents by institutions or persons within the definition.
Paragraph (b) is a drafting amendment needed as a consequence of changed numbering of sub-sections.
Paragraph (c) is a drafting simplification which does no more than use the definition in proposed sub-section (1A), to shorten the expression of section 128B(2)(b)(i). It does not affect in any way the substance of the present law.
Paragraph (d) of sub-clause (1) of clause 9 proposes that new sub-section (2A) be inserted in section 128B. In brief, the new sub-section will have the effect that a liability to interest withholding tax will arise where a resident derives interest in carrying on business through a foreign branch and the interest is paid either by a resident (otherwise than on funds used in the business of a branch outside Australia), or by a non-resident on funds used in a branch business in Australia. It is designed to remedy the deficiency on which the tax avoidance arrangement described in the introductory note on clause 9 is based. It will, in that kind of arrangement, create a liability to withholding tax on interest derived by a resident in carrying on a foreign business, to the same extent as a liability would exist if the interest were directly derived by the non-resident lender. Thus, it could not create any liability in respect of interest that is exempt from tax under section 128G because the loan moneys are used in an Australian-owned and controlled business.
Under paragraph (a) of sub-section (2A) the new provision may apply to interest derived after 2 July 1973 (as foreshadowed in a statement made on that day) by a resident in carrying on business through an overseas branch.
Paragraph (b) of sub-section (2A) sets out the circumstances in which such interest could be subject to withholding tax. By sub-paragraph (i) (which corresponds with section 128(2)(b)(i) in relation to interest derived by non-residents) a liability may arise where the interest is paid by an Australian resident and is not an expense of a foreign business. Under sub-paragraph (ii) (corresponding with section 128B(2)(b)(ii) in relation to interest derived by non-residents) liability could exist where the payer is a non-resident and the interest is paid as an expense of the payer's Australian business.
Where the tests of paragraphs (a) and (b) of sub-section (2A) are met the interest will be subject to tax to the extent provided by the general provisions of Division 11A, as it applies to interest derived by non-residents.
Paragraphs (e) and (f) of clause 9 are purely drafting simplifications which use the definition in proposed sub-section (1A). The substance of the present law is not affected.
Paragraph (g) of clause 9 proposes to add measures of substance that represent the second of the two amendments mentioned in the introductory note to the clause. These measures are proposed sub-sections (8) and (9) of section 128B.
Proposed sub-section (8) contains a rule to clarify (for the purposes of sections 128B(2)(b)(i), 128B(2A)(b)(i), and 128B(6)(b)) the geographic location of interest paid by a resident who carries on business outside Australia.
If the resident borrows funds overseas to use in the operations of a foreign branch, Australia does not seek to impose withholding tax on the interest paid to the non-resident lender (section 128B(2)(b)(i)). The proposed amendments will not change this.
The technical background to proposed sub-section (8) is that the present law, in referring to interest being an outgoing wholly incurred in carrying on business outside Australia, may not be confined to interest that is a charge against income of that business, but could, for example, extend to cases where the general arrangements for the loan and payment of interest are made at an overseas branch, even though the interest is a charge against income of the Australian business.
The objective of sub-section (8) is to firmly link the location of the outgoing interest with the location of the income resulting from the use of the funds. If interest paid is not incurred in gaining income of an overseas branch (e.g., the funds are used in Australia), the effect of the sub-section will be to preclude any argument that the interest was an outgoing wholly incurred in carrying on the branch business outside Australia, and thus not subject to withholding tax.
The sub-section goes about achieving this objective by specifying that, for purposes of the relevant provisions, where interest is paid after 2 July 1973 to a resident carrying on business outside Australia (paragraph (a)), and the interest incurred by the recipient relates to income of the recipient derived otherwise than through a foreign branch (paragraph (b)), the interest paid is not to be regarded as incurred in carrying on the foreign business of the recipient. Corresponding amendments to other provisions of the Principal Act, and based on similar considerations, are proposed by clauses 3 and 5 of the Bill.
Proposed sub-section (9) is a similar linking provision to cover the case of a non-resident who carries on business in Australia. In such cases withholding tax is imposed on interest paid by a non-resident to another non-resident in circumstances where funds are borrowed by the former from the latter for use in the former's business in Australia (section 128B(2)(b)(ii)).
The intention of sub-section (9) is to guard against the argument (based on what is meant by words in the present law concerning the incurrence of interest) that the interest paid as an expense of an Australian business is not an outgoing incurred in carrying on a branch of that business in Australia. This sub-section will also take effect from 2 July 1973, and will apply for the purposes of section 128B(2)(b)(ii), section 128B(2A)(b)(ii) and section 128B(7)(b). (Amendments corresponding with sub-section (9) are also proposed by clauses 3 and 5 of the Bill).
Proposed sub-section (10) of section 128B is existing sub-section (8) re-numbered as a result of the amendments.
Proposed sub-section (11) provides that withholding tax payable by a resident as a result of new sub-section 128B(2A) is in addition to any ordinary income tax that may be payable on that interest, and that the withholding tax so resulting is not to be deductible in calculating that other income tax. Without this provision there could be scope to use the new provisions for tax avoidance purposes.
Sub-clause (2) of clause 9, which will not amend the Principal Act, concerns the application of section 128C of that Act. Normally, interest withholding tax is due and payable at the expiration of twenty-one days after the end of the month in which the interest is derived. Sub-clause (2) relates to tax that becomes payable by reason of proposed section 128B(2A) in respect of interest paid between 2 July 1973 and the date of Assent to the Bill. That tax will become due and payable at the expiration of twenty-one days after the end of the month in which Assent is given.
The amendment proposed by this clause is a companion measure to proposed section 128B(11) (see second-last paragraph above) and will ensure that a resident who is subject to withholding tax on interest derived through an overseas branch may also have that interest included in his assessable income if the normal provisions of the Principal Act would treat that interest as assessable income.
The purpose of this clause is to insert four new sub-sections in section 221YL of the Principal Act in order to ensure that withholding tax, imposed as a consequence of amendments proposed in this Bill, may be effectively collected.
Sub-section (2C) is a drafting provision which defines a 'relevant person' as including, principally, a resident of Australia.
Proposed sub-sections (2D), (2E) and (2F) (when read together) will have the effect that where interest is derived by a resident through an overseas branch, but is to be paid to that resident in Australia rather than at the overseas branch, the resident lender will be required to give appropriate notice to the borrower. The latter will then be required to deduct 10 per cent interest withholding tax from interest payments, and forward the amount deducted to the Taxation Office.
Sub-section (2D) identifies the circumstances in which these arrangements are to apply and sub-section (2E) requires the resident lender to notify the borrower and the Commissioner that sub-section (2E) applies. The borrower is then required by sub-section (2F) to deduct 10 per cent interest withholding tax, which is the amount specified by the regulations, from interest paid after 1 month from receipt of the notice.
This clause deals with the application of the amendments to be effected by clause 4 (exemption of Defence Force allowances), clause 6 (assessability of Defence Force allowances) and clause 7 (deductions for contributions under Parliamentary and Defence Force Retirement Benefits Schemes). Explanations of how the amendments are to apply have been included in the notes on those clauses.
This Bill, which declares rates of dividend and interest withholding tax, is a technical measure consequential on the proposed extension of interest withholding tax beyond payments to non-residents to include, in a limited range of circumstances, payments of interest to residents.
The Bill will repeal the Income Tax (Non-resident Dividends and Interest) Acts of 1967 and 1973, which up till now have declared the rates of withholding tax on payments to non-residents. The Bill, with a different title from the legislation being repealed, will declare the rates of with-holding tax on payments to non-residents and on those payments of interest to residents that become subject to withholding tax as a consequence of sub-section (2A) of section 128B of the Assessment Act, being inserted by clause 9 of the Income Tax Assessment Bill 1974.
Apart from a saving provision which continues in force the previous legislation in relation to payments made before the date of Assent to the Bill, the Bill is in all substantive respects the same as the repealed measures. Clause 6 will impose the 10 per cent withholding tax on interest which comes within the Assessment Act as amended.