Investment belts tightened under new thin capitalisation measures

Articles Written by Matthew Shanahan (Partner), Annemarie Wilmore (Partner), Julian Wan (Special Counsel), Jess Tsai (Senior Associate)
Low angle shot of corporate buildings

Five weeks after Treasury’s release of exposure draft legislation to amend the thin capitalisation rules, as announced in 2023 Federal Budget (Exposure Draft), the Treasury Laws Amendment (Making Multinationals Pay Their Fair Share – Integrity and Transparency) Bill 2023 (Cth) (Bill) is now before Parliament.

The Bill is largely consistent with the Exposure Draft, the key feature being to limit debt deductions to 30% of EBITDA, as opposed to its asset-based predecessor. However, the Bill includes a number of surprises, including but not limited to a requirement for disclosure of subsidiaries in public company financial reporting and a new debt creation anti-avoidance rule.

This Bill does not address the other two key aspects of the Government’s multinational tax integrity package (the enhanced transparency and public disclosure of country-by-country reports and the denial of deductions for payments relating to intangibles and royalties).

Key Takeaways

The impact of the new thin capitalisation rules is expected to be far reaching, we anticipate:

  • that taxpayers with significant upfront expenditure (such as greenfield infrastructure and construction projects and start-ups) may now have a significant portion of their debt deductions denied, though the 15 year carried forward debt deductions rule may provide some reprieve;
  • an increased compliance burden on multinational groups from managing a more volatile year on year earnings-based ratio test while also needing to justify both the quantum of debt and the rate on interest under the transfer pricing rules;
  • that entities with intragroup funding may revisit their sources of capital, particularly as reliance on the TPDT will be restricted to ‘genuine third party debt’ with a 20% control threshold in determining whether an entity is an associate for these purposes; and
  • that taxpayers will need to exercise greater caution when entering into transactions giving rise to debt deductions involving associates, as this could trip up the new debt creation deduction limitation rule. Existing arrangements should also be reviewed in light of this new rule.

Introduction

The Bill significantly overhauls the thin capitalisation rules and will have a considerable impact on the financing arrangements of multinationals with Australian business operations.

Whilst it is not news that the Government intended to align the thin capitalisation rules with OECD best practice guidance, the Exposure Draft contained a number of surprises and modifications in response to issues identified in the Exposure Draft. Following 5 weeks of consultation, the Bill generally remains faithful to the Exposure Draft with a surprise addition of a rule to deny debt deductions otherwise allowable under the thin capitalisation regime that arise from ‘debt creation schemes’.

If the Bill is enacted in its current form, the amendments will apply for income years beginning on or after 1 July 2023, and will commence the quarter after Royal Assent. As currently drafted, there is no deferred start date, no transitional relief and generally no grandfathering (which is different to many similar regimes overseas). Taxpayers will need to act fast to consider the impact of these rules on their business.

Summary of the key thin capitalisation measures in the Bill

The Bill:

  • applies to “debt deductions” which is defined to capture interest and amounts economically equivalent to interest (consistent with OECD best practice);
  • introduces a new concept of “general class investor”, and replaces:
    • the safe harbour debt test (currently an asset-based test), with a new earnings-based fixed ratio test (FRT), which would limit an entity’s net debt deductions to 30% of its tax determined EBITDA;
    • the worldwide gearing ratio test with a new earnings-based group ratio test (GRT), which would allow an entity in a consolidated group (for accounting purposes) to claim debt deductions up to the level of its worldwide group’s net interest expense as a share of earnings;
    • the arm’s length debt test with a new third party debt test (TPDT), which would now be restricted to third party debt only;
  • introduces a new mechanism to enable entities to carry forward debt deductions denied under the FRT for up to 15 years, subject to integrity rules;
  • requires general class investors to demonstrate that both their quantum of debt (which was previously not required) and rate on interest are arm’s length under the transfer pricing rules, even where the deductions claimed fall within the FRT and/or GRT thresholds; and
  • introduces a debt creation deduction limitation rule to deny debt deductions arising from ‘debt creation schemes’, being, broadly, debt created and relating to acquisitions or borrowings involving associates. This new rule is coupled with an anti-avoidance measure designed to ensure that the debt creation deduction limitation rule cannot be avoided.

The Bill does not include the measure to repeal the existing ability for entities to claim interest deductions relation to the derivation of non-assessable non-exempt (NANE) dividend income from foreign non-portfolio investments. Government has indicated that it will consider this via a separate process.  

Who is caught by the new rules?

As with the Exposure Draft, the Bill retains the new concept of a “general class investor”, which replaces and consolidates the existing categories of general entities that were already within scope of the thin capitalisation regime.

Broadly, an entity would be a general class investor for an income year if:

  • it is not:
    • an outward investing financial entity (non-ADI);
    • an inward investing financial entity (non-ADI);
    • an outward investing entity (ADI);
    • an inward investing entity (ADI); and
  • assuming that the entity was a financial entity for all of the income year, it would be either an outward investing financial entity (non-ADI) or an inward investing financial entity (non-ADI).

Importantly, not all entities that are currently considered to be financial entities will necessarily continue to be financial entities under the new rules. The Bill would remove corporations registered under the Financial Sector (Collection of Data) Act 2001 (Cth) from the definition of financial entity. This change was not accounted for as part of the Federal Budget. Entities that are currently financial entities for the purposes of the thin capitalisation rules solely because of their registration under that Act will now need to consider the impact of the new rules as general class investors.

What are the three new tests?

As foreshadowed in the Federal Budget and consistent with the Exposure Draft, the Bill introduces three new tests:

  • the FRT, which would apply by default, unless the general class investor is eligible for and chooses (in the approved form) to instead apply one of the other tests; 
  • the GRT; and
  • the TPDT.

The FRT

The FRT allows a general class investor to claim net debt deductions up to 30% of its tax EBITDA.

Tax EBITDA is the sum of an entity’s:

  • taxable income or tax loss;
  • net debt deductions, which is defined as the entity’s debt deductions for the income year less any interest, amounts in the nature of interest or other amount that is calculated by reference to the time value of money included in the entity’s assessable income for that year;
  • total deductions under Division 40 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) (which relates to capital expenditure); and
  • total deductions under Division 43 of the ITAA 1997 (which relates to capital works),

but, disregarding:

  • Division 207 of the ITAA 1997 (which relates to franked distributions); and
  • section 44 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) (which relates to dividend income).

The Bill also includes additional drafting that clarifies how tax EBITDA should be calculated for the purposes of a trust or partnership. Importantly, for the purposes of these calculations, the associate entity threshold has been reduced to 10% (from the normal more than 50% threshold).

Carry forward debt deductions under FRT

Consistent with the Federal Budget announcement and the Exposure Draft, the Bill incorporates a deduction carry-forward rule, which would allow a general class investor applying the FRT to deduct in a later income year its previously denied debt deductions. As announced, the maximum carry forward period is 15 years.

Some important points related to this rule include the following:

  • for companies, the carry-forward disallowed deduction amounts will be subject to the general company loss testing rules;
  • for trusts, the carry-forward disallowed deduction amounts will be subject to the general trust tax loss testing rules; and
  • an entity will lose any accrued carry-forward disallowed deduction amounts if it chooses to apply a test other than the FRT in an income year – that is, disallowed deductions can only be carried forward if the entity continuously applies the FRT.

The inclusion of this carry forward deduction rule may address concerns of businesses that have inconsistent levels of profitability from year-to-year and to cater for entities (such as start-ups and infrastructure projects) that may be required to make significant upfront capital investments relative to their initial income levels. 

The GRT

A general class investor may choose to apply the GRT in working out its allowable debt deductions if:

  • it is a general class investor in an income year;
  • it is a GR group member for the relevant period; and
  • the GR group EBITDA is not less than nil.

A GR Group is comprised of a worldwide parent entity and each other entity that is consolidated on a line-by-line basis in its audited consolidated accounts.

Similar to the current worldwide gearing test, the GRT could permit an entity to claim debt deductions in excess of what would be allowable under the FRT, broadly aligned with the entity’s group ratio. This rule is expected to be particularly relevant to entities that are part of a highly leveraged global group.

Under the Exposure Draft, the choice to apply the GRT or TPDT was irrevocable. The Bill now includes a new mechanism that gives the Commissioner a discretionary power to revoke a choice made by an entity to apply the GRT or TPDT with the effect of treating the entity as if it had never made that choice, where certain conditions are met, including that it would be “fair and reasonable”.  

The TPDT

The TPDT is specifically designed to be narrow, to accommodate only genuine commercial arrangements relating only to Australian operations and investments. Very broadly, under the TPDT, a general class investor or financial entity’s debt deductions, other than debt deductions that satisfy the third-party debt conditions (referred to as the third party earnings limit), are denied.

Importantly, a general class investor is deemed to have made a choice to apply the TPDT, where:

  • it is a member of an obligor group, being:
    • a borrower that has issued a debt interest whereby the creditor’s recourse for payment relates to the assets of one or more other entities; and
    • those other entities;
  • the aforementioned borrower made a choice to apply the TPDT; and
  • its associates (determined by a 20% control threshold) made a choice to apply the TPDT. 

A debt interest would satisfy the third party debt conditions (and therefore be deductible) if:

  • the debt is issued by an Australian resident;
  • the debt is not issued to an associate;
  • the debt is not held at any time in the income year by an associate;
  • the holder of the debt has recourse for payment of the debt only to the Australian assets of the entity; and
  • the entity uses the proceeds of issuing the debt interest wholly to fund permitted investments (eg. assets of an Australian permanent establishment or assets held to produce assessable income) and its Australian operations.

It is clear that the Government’s intention is to limit the ability of taxpayers to claim debt deductions on related party debt (if such debt is not supportable under either the FRT or GRT). Importantly, the TPDT denies excess debt deductions, as contrasted with net debt deductions as is the case in the FRT and GRT. The Explanatory Memorandum explains that this approach was deliberately taken to ensure that all debt deductions attributable to related party debt would be denied under the TPDT.

As discussed above, under the Bill, the Commissioner has the discretion to revoke a previously made choice to apply the TPDT.

Conduit financier arrangements

The new rules allow for on-lending via conduit financier arrangements, which are intended to allow an entity in a group to raise third party finance to on-lend to other group members and the interest on those loans can remain deductible.

However, the requirements for these rules are prescriptive. For example, in order to qualify, the amount being on-lent must be financed only with proceeds from the funds received from the ultimate lender and the terms of each on-loan must be the same as the third party loan from the ultimate lender (other than terms as to the amount of the debt). Practically, the terms of the on-loans are likely to be different to those of third party loans, such as due to such loans being subordinated to external loans.

Other Matters

New debt creation deduction limitation rule

The Bill would insert Subdivision 820-EAA into the ITAA 1997, which is a new debt creation deduction limitation rule, which denies debt deductions arising from ‘debt creation schemes’, where artificial interest-bearing debt is created in two scenarios:

  • where an entity acquires an asset or an obligation from its associate, and the entity (or one of its associates) would incur debt deductions in relation to that acquisition; or
  • where an entity borrows from its associate to fund a payment to that, or another associate, and the entity (or one of its associates) would incur debt deductions in relation to that borrowing.

This new integrity rule applies to entities that fall within the ambit of the thin capitalisation rules.

The new rules also contain an integrity measure that allow the Commissioner to make a determination where a principal purpose of a scheme was to circumvent the application of the debt creation deduction limitation rule.

Transfer pricing rules

The application of the existing transfer pricing rules to arrangements involving debt deductions has historically been limited to section 815-140 of the ITAA 1997 where these rules only adjusted the interest rate based on arm’s length principles, but not the quantum of debt.

With the new rules, a general class investor that seeks to apply the FRT, would not only need to show that its interest rate is consistent with arm’s length conditions under the transfer pricing rules, but also that its quantum of international related party borrowings is consistent with arm’s length conditions. This additional compliance burden is expected to apply even if no debt deductions are denied under the FRT or GRT.

Non-portfolio dividends from foreign subsidiaries

Very broadly, section 768-5 of the ITAA 1997 provides that certain equity distributions from non-portfolio foreign subsidiaries are NANE income. Under the current laws, sections 25-90 and 230-15 of the ITAA 1997 provide that interest expenses incurred in deriving such income are deductible, notwithstanding the general principle that expenses incurred in deriving NANE income are non-deductible.

One significant change proposed in the Exposure Draft, which was not flagged in the Federal Budget, are proposed amendments to sections 25-90 and 230-15 of the ITAA 1997, to deny debt deductions in respect of such income. This change would have affected all taxpayers with income that is NANE under section 768-5 of the ITAA 1997, and not just taxpayers that are subject to the thin capitalisation rules.

While the Bill excluded this change following the Exposure Draft consultation process, the explanatory memorandum makes clear that the Government still intends to consider this measure, albeit as part of a separate process.    

No modified rules for high leverage industries

Similar regimes around the world (eg the United Kingdom) typically have a significant number of exemptions for industries that are usually highly leveraged, such as infrastructure transactions.

Regrettably, the Bill does not include any exemptions for highly leveraged industries, which is a disappointing turn of events.

Next steps

The proposed amendments represent a significant change to the thin capitalisation rules in Australia and, with an imminent start date of 1 July 2023, taxpayers have very little time to plan, particularly given the significant addition of the new debt creation deduction limitation rule.

In particular, we expect that inbound and outbound investors alike will want to review their capital and legal structures, including considering the need to restructure existing related party debt to third party financing. 

For additional information with respect to this insight, please contact us.

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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