New anti-avoidance rule denying deductions for payments relating to intangible assets

Articles Written by Kathryn Bertram (Partner), Annemarie Wilmore (Partner), Don Spirason (Special Counsel), Katherine Gough (Senior Associate)
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On 23 June 2023, Treasury released further draft legislation to deny deductions for payments by Significant Global Entities (SGEs) relating to intangible assets connected with low corporate tax jurisdictions (Exposure Draft Bill).

The anti-avoidance measure applies to deny deductions on or after 1 July 2023 where:

  • The SGE makes a payment, credit or incurs a liability to an associate;
  • The payment, credit or liability is attributable to a right or permission to acquire or exploit an intangible asset under an arrangement (whether express or implied); and
  • As a result of that arrangement, income from the exploitation of those or related intangible assets is directly or indirectly  derived by an associate of the SGE in a low corporate tax jurisdiction.

Doubled penalties will apply (in addition to the doubled penalties that apply to SGEs).

Given the broadness of the scope of the proposed legislation, coupled with it applying to existing arrangements and noting the significant penalty implications, it would be prudent for SGEs to act now in reviewing their arrangements.

Overview

The Exposure Draft Bill amends the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) to include a new anti-avoidance rule to deter SGEs from avoiding corporate income tax and withholding tax by structuring their arrangements so that income from exploiting intangible assets is derived from low corporate tax jurisdictions.

The Exposure Draft Bill follows the October 2022 Federal Government announcement and an earlier exposure draft released in March 2023 for consultation.

Some of the feedback received by Treasury from the consultation process has been taken into account in this new Exposure Draft Bill and accompanying Explanatory Memorandum (EM).

Overall the design of the proposed legislation remains incredibly broad. The surprise feature in this new Exposure Draft Bill is the Governmental position on penalties, which effectively quadruples the base penalty amount. This aspect is particularly concerning given the broadness of the scope of the proposed legislation and the notable absence of a purposive element (which is an important counterweight that features in other anti-avoidance provisions).

The new law is intended to apply to existing structures as well as to deter new structures.

Changes in the new Exposure Draft Bill include modifications, which reflect feedback as part of the consultation process. As an example, for the purposes of determining whether income is derived by an associate in a low corporate tax jurisdiction from the exploitation of an intangible asset, the following income is disregarded, to the extent that the income:

  • is attributed and assessed to a relevant taxpayer under the Australian CFC regime; or
  • is subject to foreign income tax at a rate of at least 15 per cent.

Key concepts in the proposed new law 

Exploiting an intangible asset

Defined broadly and includes using, marketing, selling, licensing or distributing the intangible asset.

The amendments apply to a permission to exploit an intangible asset, and thus will apply where the ability to exploit the intangible asset is implied via the conduct of, or an understanding between, the related parties.

Examples of activities considered to be within the meaning of exploiting an intangible asset are:

  • the copying of an item of copyright or software;
  • the issuance of a licence key or other piece of information that allows access to a piece of software or database;
  • accessing information in a database or deploying the output of an algorithm;
  • the use of a brand, trade mark or other intangible asset that is a source of goodwill that can be used by an entity holding themselves out a representative of that brand or group;
  • a right or obligation to distribute or sell products on behalf of an associate in return for consideration from either the associate or third party customers that involves marketing, selling or distributing the intangible asset even when that intangible asset is distributed directly from the offshore associate to the customer.

Arrangement

Adopts the broad definition in s 995-1(1) of the ITAA 1997 and includes:

  • the ordinary meaning of the term ‘arrangement’;
  • an agreement, understanding, promise or undertaking, whether express or implied, and
  • whether or not enforceable (or intended to be enforceable) by legal proceedings.

In addition, the provision requires that the SGE or associate acquires the intangible asset, the right to exploit, or actually exploits the intangible asset, as a result of the arrangement under which the payment is made.

This is an objective test which will require an examination of the whole arrangement, including collateral contracts and legally unenforceable understandings between the parties. It will apply to situations where the SGE or other entity does not acquire any express right to exploit the intangible asset under an arrangement providing for the payment, but, as a result of a common understanding, has access to intangible assets. The EM also makes it clear that it is not necessary that the payment and acquisition of the right to exploit or exploitation of an intangible asset is provided for in the same contract.

Payments can be made by an SGE directly, or through one or more other entities to an associate. A strict tracing through the flow of funds is not required.

Mischaracterisation

The amendments apply to deny deductions to the extent that the payment is attributable to the right to exploit the intangible asset. It will capture circumstances where a payment might purportedly be made for things, such as services or tangible goods, but the arrangement also results in the exploitation of an intangible asset (regardless of whether it is stated in the written contract that the payment is for services or a tangible good).

Intangible assets

The phrase takes its ordinary meaning, and it is not intended that the term adopt a definition specifically used for accounting or transfer pricing purposes.

Examples include intellectual property, copyright, information or data (including a database of customers), algorithms, software licenses, licenses, trademarks, patents and leases, licences or other rights over assets.

Carved out of the definition is tangible assets, interests in land and certain financial arrangements.

An additional exclusion is genuine supply and distribution agreements. For example, where trade marks are printed on finished goods that are marketed and sold by an SGE to customers, the anti-avoidance rule will not apply to deny a deduction to the extent that the payment made by the SGE to an associate is genuinely attributed to the good and not the trademark.

Low corporate tax jurisdictions

A foreign country will be a low corporate tax jurisdiction if the rate of corporate income tax is less than 15% or nil.

It is the national headline corporate income tax that is relevant for the purposes of determining whether a jurisdiction is a low corporate tax jurisdiction. Any concessional rate of income tax that could apply in the foreign country is not relevant to the definition.

For countries with progressive corporate income tax rates, only the highest rate will be relevant. However, state and municipal income taxes will be aggregated to determine the rate of corporate income tax applied.

In determining if income has been derived in a low corporate tax jurisdiction by an associate, income, to the extent that it has been taken into account and assessed as attributable income under the Australian CFC regime is disregarded. In addition, to the extent that any amount of income is subject to foreign tax of at least 15 per cent, that amount of income is also disregarded.

The amendments will also apply to deny deductions for payments to associates where income from exploiting the intangible asset is derived in a jurisdiction determined by the Minister as providing for preferential patent box regime without sufficient economic substance.

Recognition of Royalty Withholding Tax

The Exposure Draft Bill proposes that where a deduction would otherwise be denied because of the operation of the amendments, but the taxpayer has withheld an amount from a royalty payment and remitted it to the Commissioner, and no other provision denies a deduction, the amount of the deduction denied will be reduced to reflect the withholding tax paid.

Increased SGE penalties

The Exposure Draft Bill also contains a doubling of the base penalty amounts (in addition to the doubling that already applies to an SGE). A snapshot of these increased penalties are below:

  • No reasonably arguable position/ failure to take reasonable care = 100% of the shortfall amount
  • Recklessness = 200% of the shortfall amount
  • Intentional disregard of the law = 300% of the shortfall amount

Next steps

The broad application of the new rule means that SGEs will need to carefully consider their arrangements immediately given the provisions are proposed to commence on 1 July 2023.  

Under the new rule, deductibility will turn upon the concept of whether the payment is “attributable to” the exploitation of the intangible asset. To the extent that the payment is attributable to other rights or things other than the exploitation of the intangible asset, there may be a basis for the deduction (as to that part).

In order to ascertain whether and to what extent the payment by an SGE to an associate is attributable to the exploitation of an intangible asset, it may be useful to undertake the following evaluative steps:

  • Identify the rights to exploit the intangible asset (whether express or implied);
  • Identify payments to any associates in a low corporate tax jurisdiction (irrespective of whether a pass through cost or ultimate recipient);
  • Identify income derived by an associate as a result of the arrangement in a low corporate tax jurisdiction;
  • Examine the facts and circumstances regarding the arrangement; and
  • Consider the link or nexus between the payment and the intangible asset being exploited.

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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