Federal Budget 2020 Insights

Articles Written by Kathryn Bertram (Partner), Stewart Grieve (Partner), Prashanth Kainthaje (Partner), Julian Wan (Special Counsel), Gina Iskander (Associate), Jessica Samuel (Associate), Lachlan Smithers (Associate), Georgia Whiteside (Associate), Emily Blight (Law Graduate), Marc Eastmure (Law Clerk)

Below, we bring you the key taxation reforms announced by the Treasurer, the Hon. Josh Frydenberg in the 2020/21 Australian Federal Budget. This year’s budget was always going to be shaped by the devastating impact on the Australian economy of recent natural disasters (bushfires, floods and drought) and the global COVID-19 pandemic. The Government’s primary focus in the budget is on job creation as the key to Australia’s economic recovery.

As part of this jobs strategy, key taxation stimulus measures announced by the Treasurer were:

  • bringing forward stage two of the Government’s Personal Income Tax Plan by two years with personal income tax relief for lower and middle income earners (in the form of an increase to the low income tax offset and increases in the top threshold of each of the 19% and 32.5% tax brackets), back-dated to 1 July 2020, as well as retaining the low and middle income tax offset in 2020/21;
  • temporary tax loss carry-back rules for companies with a turnover less than $5 billion to apply tax losses incurred in the three income years up to 30 June 2022 against taxable income derived in or after the 2018/19 income year;
  • for businesses with a turnover less than $5 billion, an immediate tax deduction for the full cost of eligible depreciable assets acquired from 7.30pm AEDT on 6 October 2020 and first used or installed ready for use by 30 June 2022;
  • expanded access to the small business sector tax concessions as a result of the small business turnover threshold being increased from $10 million to $50 million; and
  • the abandonment of plans to cap the refundable R&D tax offset available to smaller companies and further refining the Government’s previously proposed changes to the R&D tax offset rules. 

Bringing forward the Personal Income Tax Plan

As part of the 2018/19 budget, the Government had announced a seven-year personal income tax plan to lower taxes for individuals. This year the Government has announced that it will bring forward the second stage of the income tax plan from 1 July 2022 to 1 July 2020, and continue to build on it by:

  • increasing the low income tax offset from $445 to $700;
  • increasing the top threshold of the 19% personal income tax bracket from $37,000 to $45,000; and
  • increasing the top threshold of the 32.5% personal income tax bracket from $90,000 to $120,000.

The Government says that these changes will “provide immediate tax relief to individuals and support the economic recovery and jobs by boosting consumption”.

The third stage of the income tax plan remains the same and will commence as planned in 2024/25.

The Government also announced that it will retain the low and middle income tax offset for the 2020/21 income year. The offset will provide a reduction in tax up to a maximum of $1,080.

The Medicare levy low-income thresholds have increased slightly for singles, families and seniors and pensioners from the 2019/20 income year to account for recent movements in the CPI.

Temporary loss carry-back provisions

As anticipated, the Government has announced that it intends to introduce temporary loss carry-back measures to provide cash flow support to companies currently running at a loss.

Under the proposed measures, corporate tax entities with an aggregated turnover of less than $5 billion can elect to offset tax losses from the 2019/20, 2020/21 or 2021/22 income years against previously taxed profits in 2018/19 or later income years. It appears that the loss carry-back will be implemented by way of a refundable tax offset in the year in which the loss is made.

Unsurprisingly, the amount carried back must not be more than the earlier taxed profits. However, the carry-back must also not generate a franking account deficit, limiting the amount of losses which some companies will be able to carry-back.

If the measure is enacted, the refundable tax offset will be available on election by eligible companies when they lodge their 2020/21 and 2021/22 tax returns. Companies that do not elect to carry-back losses under this measure can still carry losses forward as usual.

The introduction of temporary loss carry-back provisions would be in line with OECD advice and global trends. In response to the pandemic, carry-back provisions have already been introduced or expanded by a number of other countries, including the United States, Britain, Germany, Japan and New Zealand.

The Government hopes that these loss carry-back measures will encourage businesses to invest and take advantage of the temporary instant asset write-off measures.

Temporary instant asset write-off

Businesses with an aggregated annual turnover of less than $5 billion will be able to deduct the full cost of “eligible capital assets” acquired from 7:30pm AEDT on 6 October 2020 and first used or installed ready for use by 30 June 2022. 

A deduction for the full cost (“full expensing”) in the year of first use will be available for new depreciable assets and the cost of improvements to existing eligible assets.  This measure will also apply to second-hand assets for small and medium sized businesses (with aggregated annual turnover of less than $50 million).

Businesses with aggregated annual turnover between $50 million and $500 million can still deduct the full cost of eligible second-hand assets with a cost of less than $150,000 that are purchased by 31 December 2020 under the enhanced instant asset write-off.   Businesses that hold assets eligible for the enhanced $150,000 instant asset write-off will have an extra six months, until 30 June 2021, to first use or install those assets.

Small businesses with aggregated annual turnover of less than $10 million can deduct the balance of their simplified depreciation pool at the end of the income year while full expensing applies. The provisions which prevent small businesses from re-entering the simplified depreciation regime for five years if they opt-out will continue to be suspended.

Expanded access to small business tax concessions

Many more businesses will have access to a variety of small business tax concessions as the small business entity turnover threshold will be increased from $10 million to $50 million.

The concessions will be made available in three phases:

  • from 1 July 2020 – immediate tax deductions for certain start-up expenses and certain prepaid expenditure;
  • from 1 April 2021 – exemption from the 47% fringe benefits tax (FBT) on car parking and multiple work-related portable electronic devices provided to employees; and
  • from 1 July 2021 – access to the simplified trading stock rules, remittance of PAYG instalments based on GDP adjusted notional tax and settlement of excise duty and excise-equivalent customs duty monthly on eligible goods.

Eligible businesses will have a two year income tax amendment period for income years starting on or after 1 July 2021. The reduced amendment period will not apply to businesses that have significant international tax dealings or complex affairs.

The ATO will also have the power to create simplified accounting method determinations for GST purposes for businesses below the $50 million aggregated annual turnover threshold.

Research and Development

The Government has announced amendments to the research and development (R&D) tax offset available to smaller companies, and further changes to the proposed R&D intensity test for larger companies. The effect of the announced measures is that most of the proposed changes to the R&D tax incentive mooted in the stalled Treasury Laws Amendment (Research and Development Tax Incentive) Bill 2019 will either be amended or scrapped. All measures announced in the 2020 budget will have a start date of 1 July 2021.

Companies with aggregated annual turnover of less than $20 million
Increased tax offset

The 2019 Bill proposed to amend the percentage tax offset for R&D expenditure available from a flat rate of 43.5% of eligible R&D expenditure to 13.5% more than the company’s corporate tax rate. However, the Government has now announced that the refundable R&D tax offset will be set at 18.5% more than the company’s tax rate. This means that for smaller companies who pay income tax at the lower corporate tax rate (currently 26% but reducing to 25% from 1 July 2021), the available R&D tax offset should remain at 43.5%.

Proposed cap cash refunds scrapped

The proposed $4 million cap on cash refunds which was proposed in the 2019 Bill has been scrapped.

Companies with aggregated annual turnover of $20 million or more
R&D intensity test

Currently, companies with an aggregated turnover of $20 million or more are entitled to a flat 38.5% non-refundable R&D tax offset in respect of core and supporting R&D activities.

An R&D intensity test, which is currently proposed in the 2019 Bill, will be introduced. However, the number of intensity tiers has been reduced from 3 to 2.

The R&D premium still ties the rates of the non-refundable R&D tax offset to a company’s incremental R&D intensity, which is R&D expenditure as a proportion of total expenditure for the year. The marginal R&D premium for larger companies will be the company’s corporate tax rate, plus;

  • 8.5% above the company’s corporate tax rate for R&D expenditure between 0% and 2% R&D intensity; or
  • 16.5% above the company’s corporate tax rate for R&D expenditure above 2% R&D intensity.
Increased threshold

The proposed reforms from the 2019 Bill which will increase the threshold for R&D expenditure eligible for concessional treatment from $100 million to $150 million have been retained.

Clarifying the Corporate Residency Test

Following a review by the Board of Taxation of the statutory definition of corporate resident, the Government has announced that it intends to amend the corporate residency test to provide that a company that is incorporated offshore will be treated as an Australian tax resident if it has a “significant economic connection to Australia”. The proposed test will be satisfied where both the company’s core commercial activities are undertaken in Australia and its central management and control is in Australia.

The proposed amendments would return the treatment of foreign incorporated companies to the position prior to the 2016 High Court decision in Bywater Investments Ltd v Federal Commissioner of Taxation (2016) 260 CLR 169 (Bywater), which departed from the long-held position on the definition of a corporate resident. In the wake of Bywater, the ATO withdrew TR 2004/15 Income tax: residence of companies not incorporated in Australia — carrying on a business in Australia and central management and control on 15 March 2017 and the Government requested that the Board of Taxation review the definition in 2019/20. This measure reflects the Board’s key recommendation in its 2020 report: Review of Corporate Tax Residency.

It is intended that the amendments will take effect from the first year after the amendments are passed into law and receive Royal Assent, although taxpayers will have the option of applying the amended corporate residency test from 15 March 2017, the date on which TR 2004/15 was withdrawn.

Removing tax impediments to retraining and reskilling

The Government will introduce an exemption from FBT for employer provided retraining and reskilling benefits provided to redundant, or soon to be redundant, employees where the benefits may not be related to their current employment. This measure applies from announcement.

Currently, FBT is payable if an employer provides training to redundant, or soon to be redundant, employees and that training does not have sufficient connection to their current employment. This measure will provide an FBT exemption for a broader range of retraining and reskilling benefits, providing an incentive to employers to retrain redundant employees to prepare them for their next role or career. The exemption will not extend to retraining included in a salary packaging arrangement or for Commonwealth supported places at universities, or extend to repayments towards Commonwealth student loans.

The Government will also consult on allowing an individual to deduct education and training expenses they incur themselves where the expense is not related to their current employment. Individuals can currently deduct education or training expenses they incur which are sufficiently related to their current employment. The Government will consult on potential changes to the current arrangements to determine whether deductions should also be targeted to future employment and skills needs.

Reducing the FBT compliance burden

The FBT legislation currently prescribes the form which a range of records must take for FBT purposes. The result is that employers, and in some cases employees, are required to create additional records, like employee declarations, in order to comply with their FBT obligations.

The Government has announced that the ATO will be provided with the power to (where appropriate) allow employers to rely on alternative records, such as existing corporate records, for FBT return purposes.

This measure will take effect from the start of the first FBT year (1 April) after the enabling legislation has received Royal Assent.

Updated list of information exchange countries

From 1 July 2021, the Government will update the list of countries which have entered into information sharing agreements with Australia to include 9 new jurisdictions (the Dominican Republic, Ecuador, El Salvador, Hong Kong, Jamaica, Kuwait, Morocco, North Macedonia and Serbia), although Kenya will be removed. This will enable residents of those additional countries to access the reduced withholding tax rate of 15% on certain distributions from Australian Managed Investment Trusts

Victorian business support grants – non-assessable, non-exempt income

State grants are generally considered taxable income by the Commonwealth. However, given the exceptional circumstances faced by Victorian businesses, the Government will make the Victorian Government’s business support grants for small and medium businesses which were announced on 13 September 2020 non-assessable, non-exempt (“NANE”) income for tax purposes.

This arrangement will be extended to all States and Territories on an application basis but will be restricted to future grant program announcements for small and medium businesses facing similar circumstances to Victorian businesses. This will only apply to grants announced on or after 13 September 2020 and to payments made between 13 September 2020 and 30 June 2021.

What’s on the horizon, leading into the next election?

The current global economic crisis caused by the coronavirus pandemic has been described as the worst since the Great Depression. The Morrison Government has reacted accordingly with its latest response being the emergency measures, including tax initiatives, announced in this evening’s federal budget. Essentially these measures are designed to save businesses and jobs and pump cash into the economy.

The next federal election for the House of Representatives is still almost two years away. What can we expect from the Government in the interim? This will likely depend upon courses of events concerning the coronavirus not entirely within the country’s control.

In the event that a vaccine for the virus is discovered, produced and distributed reasonably rapidly and there are no further major outbreaks of the virus in Australia, then the economy may recover reasonably quickly on the back of tonight’s stimulus measures. In that event, the current circumstances may represent a historic opportunity for the Government to undertake long awaited, fundamental reform of the Australian tax system. Over the last twenty years, successive Australian governments have toyed with the idea of undertaking “root and branch” reform of the Australian tax system, but have ultimately baulked at doing so, due presumably to the potentially high political cost associated with such action. The political risk of undertaking “root and branch” reform of the tax system may not be as great in the current environment where extraordinary times call for extraordinary measures.

However, in the event that a vaccine is not available in the near future and Australia becomes susceptible to more of the types of outbreaks of the virus experienced recently in Victoria, we can anticipate the Government continuing to react to the impact of the virus on the economy in much the same way that it did this evening. In that event, what we can expect from the Government in the next two years leading up to the election is more of the same types of emergency, piecemeal, tax stimulus measures announced this evening (assuming such measures indeed prove to be effective), designed to immediately put cash into the pockets of businesses and individuals to avert what might otherwise be a continuing, very severe social and economic crisis.    

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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